Contents
- Basics
- Preparing to take a deposition
- Getting the deposition started
- On the record - Off the record
- Common problems
- Defending depositions
- Comments from Readers
Taking depositions is easy, a wizened trial lawyer once told me, "just ask a lot of questions." In a loose sense, he's right. But if you've never taken or attended a deposition there are some things that seem obvious to a veteran lawyer, but which the novice lawyer doesn't necessarily appreciate. Even the process for getting a deposition started can trip up the young lawyer.
The Usual Stipulations
The first thing that comes up right around the time the witness is sworn in is the ceremonial discussion of whether the deposition will be governed by "the usual stipulations." Very few people really discuss what the "usual stipulations" are; sometimes you'll hear someone say that "all objections, except as to the form of the question are reserved until trial." But no one ever bothers to state for the record what constitutes an "objection as to the form." It's assumed that you know. Do you?
Form objections
If an alien from outer space were to come and observe a bunch of depositions and then try to figure out what a "form objection" is he would have to conclude that it's any question the attorney doesn't like. Or it's a question the attorney wants the deponent to be very careful in answering. In short, the "form objection" as it is used in everyday law practice is usually a verbal nudge in the deponent's rib cage.
In reality (and it's good to know what the real rule is sometimes), a form objection is one that challenges the manner in which the question is posed. Examples of proper form objections include: leading question (not applicable to a hostile witness), argumentative questions, compound questions (i.e. asking about two different things in one question), ambiguous questions, assuming facts not yet established (some say "not in evidence" but trials are where 'evidence' is introduced), speculative, improperly characterizing the witness' earlier testimony, and cumulative or repetitive questions. SeealsoTrial Techniques (4th Ed.) by Thomas Mauet, at page 426 (listing the various types of objections).
Form objections do not include hearsay, or objections that go to the admissibility of the testimony or evidence. It's stupid to make objections (without some really good reason) to the admissibility of testimony; it gives your opponent a free peek into your strategy at trial.
The reason that 'the usual stipulations' require that objections to the form of the question to be made at the deposition (lest the objection be forfeited) is that it gives the questioner a chance to rephrase the question to cure the objection. Obviously, that rationale doesn't apply to admissibility objections because there is no cure for most of those; the judge is either going to admit the testimony or document or she isn't.
If your opponent makes a form objection that isn't really a proper form objection the best practice is to simply ignore it and instruct the witness that they are allowed to answer the question (assuming that they understand the question). If, however, the form objection seems proper, but you need clarification from your opponent, it is advisable to ask exactly what the basis for the form objection is. And when you make form objections you should make it your practice to state briefly what the objection is (unless, you are using it to simply 'nudge your own witness,' which of course you aren't really supposed to do).
Taking a deposition is easy, but taking a good deposition requires methodical preparation. First, figure out what your purposes are in taking the deposition (this is easy to do if you have trial experience and hard if you are inexperienced). Here are some things to consider:
- is the deponent an adverse party, an unfavorable witness or a friendly witness?
- are you taking the deposition to gather information, or to perpetuate trial testimony?
- what information are you looking for?
- what documents do you need the witness to authenticate, or explain?
- can the witness help you obtain or defeat a summary judgment (or other pretrial) motion?
Outline your deposition questions
Notice I said "outline" the questions. If you write out a series of questions you are going to be hampered in pursuing new topics that come up in the examination. If you have an outline you will be more flexible. So make an outline.
Start with a heading for "Background" where you will ask the witness some questions about his personal and educational background. If the witness is an expert witness, and especially if his or her qualifications are an issue, you will want to go into detail about the educational background. Of course, you should have a detailed resume, so you don't want to waste time just having the witness recite every step of his educational history.
Other topics for your deposition outline might include documents to be identified, authenticated, or explained (you should have a chronological stack of all the documents that the witness authored or received), as well as key factual issues. Consider writing out elements of the various claims that are at issue in the lawsuit and see if the witness's testimony bears on any of those elements.
Usually the deposition examination should proceed chronologically, that is, from a point early in time to more recent events. Proceeding in this way makes it easier for the witness to remember things, and cuts down on the number of objections where the opposing counsel asks you to "clarify the time frame of your question."
Sometimes you will want to deviate from a strict chronological progression. For example, you may know that you will have to ask pointed questions that the witness will resent, and you might want to save those questions for the very end. Once you start asking a witness about unpleasant things they tend to become less inclined to volunteer information. So sometimes starting with the least controversial stuff first makes the most sense.
Remember to bring a copy of the deposition subpoena, and any witness fees that you might be obligated to give to the witness. Also, bring a business card to give to the court reporter so that he or she can see how to spell your name, and so that they have contact information for you.
If all goes well, the witness will show up and everything will proceed smoothly. Usually, the court reporter will want a caption that describes the name of the case, the docket number and the name of the witness. The subpoena should have all of this information, and often you will want to make the subpoena Exhibit 1 of the deposition (hopefully, you brought exhibit stickers, but if not the court reporter should have them).
Swear the Witness & Get their Contact Information
If the court reporter hasn't sworn the witness, then you should ask them to do so. The swearing of the witness is more or less the official beginning of the deposition. Some lawyers then ask the witness to "give their full name and address for the record." If the court reporter got this information before the deposition began then you don't need to do it again, unless you feel you need to have the witness provide this information under oath.
What's a Deposition all about?
Many lawyers have a whole harangue where they explain to the witness what a deposition is, and how they should tell the attorney if they don't understand a question etc. Very few lawyers reflect on what this preamble is designed to accomplish.
Think impeachment at trial.
If the witness says something in the deposition that doesn't jibe with their testimony at trial you can use the deposition to impeach the witness. Assuming that the questions asked in the deposition and at the trial are sufficiently similar, you will succeed in impeaching the witness who changes their testimony.
Sometimes, though, when you confront a trial witness with their deposition testimony they will weasel out of it by saying that they didn't really understand the question. So you need to "seal off that exit" by making sure that the deponent knows what the ground rules are. The ground rules are: (1) they are under oath and have to give accurate answers to questions; (2) if they answer a question they will be assumed to understand it, so (3) if they don't fully understand a question they should say so.
Many attorneys spend so much time explaining how a deposition works, or do it in such a formal way, that the witness is taken aback, or made nervous. Your goal, for most deponents, is to put them at ease in the beginning of the deposition so that they give you information freely, without you having to browbeat them for every answer.
So you need a stock way of starting the deposition that isn't too formal or intimidating, but yet still accomplishes the objective of committing the deponent to his or her answers. Here is a good way of doing it:
- Q. Now, Mr. Hitler have you ever been to a deposition before?
- A. No.
- Q. Well, do you know how a deposition works?
- A. Not really.
- Q. Well, Mr. Hitler, I'm going to ask you a bunch of questions about the accident/contract dispute/event and you'll have to answer them under oath. The other lawyers here are allowed to ask you questions too if they so choose. The court reporter is taking everything down and will prepare a written record of everything that is said, which we lawyers refer to as "a transcript." If you want to you can review the transcript to check if it is accurate and make any corrections before signing it. Do you understand?
- A. Yes.
- Q. It is very important that you understand the questions and give accurate answers. If there is anything that you don't understand, or anything that you don't know or aren't sure of, you let us know, okay?
- A. Yes.
This simple preamble accomplishes all of the objectives discussed previously, except it does so in plain, unassuming language that isn't likely to make the witness nervous. It can be easily modified, so that even if the witness says they have given a deposition you can say, "well then you know that it works like this..."
Starting to ask questions
Remember you are more likely to get the witness to give you useful information freely if you ask broad questions in a casual manner. If you start with broad questions, you can then zero in on things that you need to. Use follow up questions to tie down details. Remember it doesn't matter if your questions violate some evidence rule; your goal is to gather information (unless it's a perpetuation deposition).
Remember that you usually have two purposes in a deposition: (1) gathering information and getting the witnesses version of events; and (2) "sealing off the exits," or eliminating possible versions of the story that isn't in the witness's version now, but which might sneak in there later.
During the deposition you are "on the record" and that means that unless the court reporter transcribes information it might as well not exist. So be sure to speak slowly and methodically. You can ask the court reporter to "strike" a question that you realize doesn't make sense after you utter it. But it's best not to get into the habit of doing this too much.
Remember, also, that if you refer to a document you may need to make that document an exhibit to the deposition. You don't need to make every document a part of the record. If the document has a Bates number then you can use that to pin the document down. Again, simplicity is best. You should only make things part of the record if you need to.
If you need to go off the record for some reason don't hesitate to do so. Remember, the court reporters charge by the page and they are only too happy to let you, and your legal brethren, wax eloquent on the record. More blabbing means more money.
You should try to limit the deposition record to the witness's testimony and the important discussions between counsel. A lot of what gets discussed on the record among attorneys is pure crap. Don't be afraid to suggest that a discussion take place "off of the record." If your informal discussion with the other lawyers leads to some agreement that needs to be memorialized you can always go back on the record and state it concisely.
If you are asking pointed questions about a key issue that is in dispute don't let the opposing counsel suggest that you "go off the record" so she can confer with her client. Insist that pending questions be answered before taking a break.
Inexperienced lawyers often run into problems during a deposition. First, they tend to underestimate the time it will take to conduct the deposition. Even a simple deposition taken by an experienced lawyer will take at least an hour.
A second problem, and much more serious, is that the young lawyer will often not have a clear idea of what they are trying to accomplish in the deposition. It often helps to consider if you are: (1) trying to just gather information; (2) getting specific admissions of key facts; or (3) preserving testimony for later use at trial.
Third, lawyers sometimes use an inadequate method of questioning the witness. How you ask questions depends on what you are trying to accomplish. If you are trying to simply find out things then asking informal, open-ended questions is best. If you are trying to pin the witness down then use leading questions. And if you are trying to preserve testimony then use the exact method that you would use in trial, which is likely a methodical approach that takes into account evidentiary issues.
Fourth, many young lawyers frequently get confused about how to handle documents. As discussed before, if you have documents that the witness prepared or received you should have those documents assembled in chronological order. For the documents that you expect to go over with the witness you should have several sets available at the deposition: one set for you, one set for the witness, and one set for each of the lawyers that will be attending the deposition. If you make a document an exhibit you should immediately mark your copy (which you will be giving to the court reporter), and you should keep a running tab of the exhibit numbers that you have used so that when you introduce the next document you don't get confused.
Fifth, there is the tendency to get bogged down in minutiae, especially when covering background information. Remember your purpose: what information do you absolutely have to get out of this witness? If the witness says something interesting, but which isn't helpful, go on to a more productive topic. It's easy to waste time in depositions. It's a tendency you have to fight constantly, even as you grow more experienced.
Defending depositions is easier than taking them, but that doesn't mean it is so simple that you don't have to prepare. First, if there are documents in the case, gather all of the documents that your deponent wrote or received and assemble them in chronological order. Have the witness come in the day before the deposition if possible, or at least a couple of hours early, and put the witness in a room and ask them to go through the documents. Let them do it alone.
After they have reviewed the documents or other materials that will help them orient their memory you can sit down and ask questions about key documents to help focus their attention.
A question that often comes up is the issue of how you prepare the deponent without suggesting what their testimony should be. Obviously, you aren't going to be telling the witness what to say. It is unethical, and unlikely to help you (and probably very likely to backfire). But what you can, and should do, is to explain to the witness what the case is about and how their testimony fits into the case. If you have identified the key themes that support your case (and odds are you have, or should have, done so) then you can weave those themes into your explanation of the case. Most witnesses have no trouble understanding your theme. If you find witnesses having trouble grasping your themes then you are probably not using simple themes.
After you have reviewed the key facts of the case and oriented the witness you need to let them know how to conduct themselves in a deposition. If they haven't given a deposition before (or even if they have), they need some simple guidelines that they can remember easily. If you give them ten things to remember then the odds are that they won't remember anything. It's best to give them just one or two things to mull over.
First, tell them that they are simply being asked to give a truthful account of what happened so if they just say what they know they'll be fine. Then tell them that the only problem is that sometimes people think that they know more than they do and wind up speculating and assuming things that they don't really know. Tell the witness to listen carefully to the question and only ask the question that is being asked. Don't assume things, and be quick to answer questions that have built-in assumptions. The witness should remain calm and not get upset, even if the attorney starts asking questions in a pointed manner.
Lastly, tell them that short answers are best. If the question calls for a yes or no, answer with a yes or no. If you need to explain you can, but keep your answers as short as you can.
Short, truthful answers. That's the key. And that's something they can remember.
Usually.
Reader #1
"I think your deposition tips are very good, and should be required reading for all lawyers who are preparing to take or defend a deposition. They should also read FRCivP Rule 30, which gives you the basic rules on deposition etiquette. I have long thought that the subject of depositions (taking, defending and use) might be the subject of an all day seminar that the FBA or other local bar group might sponsor."
Reader #2
"Good stuff. I would only add, under common problems, two things: 1) how to handle the "I don't know" witness (in response to a series of 'I don't knows,' or 'I don't remember') ask 'is there any document in the world I could show you that might refresh your recollection' or 'is there any document that contains that information.' 2) after coming to the end of a major topic that a witness has just related concerning a particular transaction or conversation, finish with 'Have you now told me everything you can recall regarding that conversation?'"
Reader #3
"Although it seems like you've already done so, check back issues of the ABA Journal for McElheney's articles on the topic.
One thing that you might add, regarding goals of the deposition: the REAL goal of the deposition is to move your case to a favorable settlement or verdict. To that end, it's important both to make an evaluation of the witness and to make an impression on the witness that favors settlement. (I am not advocating being obnoxious, however.) Also, you might be trying to find out what the witness DOES NOT know and cannot possibly testify to later."
Reader #4
"One suggestion: include some information about how the permissible grounds for instructing witnesses not to answer. Apparently the mid-90's revision to the Federal Rules of Civil Procedure tightened these up. Now instructing a witness not to answer for any reason except privilege is the basis for a sanctions motion. I had a depostion last August and made this mistake. My courtroom experience has been nearly all criminal litigation; depositions were very rare.
Also, if you have one, you might provide a handout used to prepare witnesses for depositions."
________________________________________________________________________
When an expert's CV attempts to summarize a long career, you can often get some good fodder for cross-examination by paying attention to the dates. Did the expert's real-life work experience with the subject of his testimony end years before? Did it just begin? What was the date of the expert's most recent publication? The date of the most recent publication on the topic about which he's testifying?
Questions like these raise interesting topics for cross-examination. At a recent trial, I saw an expert cross-examined along these lines--
You have a section in your CV titled Honors and Awards?
The last honor or award that's listed is dated 1978?
You haven't received any honors or awards since 1978?
That's when you were teaching?
But you haven't done any teaching in three decades?
For more about cross-examining experts, see also these related posts: "Preparing for Expert Depositions by Looking Ahead to the Cross-Examination at Trial" and "Cross-Examining Experts During Depositions: A Tip."
For those who have my book Deposition Checklists and Strategies, see also Chapter I, VII, Expert Depositions, and §1:216 Five Ways to Hit Homeruns with an Expert's CV.
Here's a checklist of some questions you can ask about documents at depositions, while ignoring the objection from the other side that the document "speaks for itself." It doesn't, and the objection can be ignored--
- Who wrote the document;
- Who received the document;
- Whether the witness received the document;
- Whether the witness maintained the document in printed or electronic format, and where, and why;
- Where the original of the document is maintained;
- The identity of the author and the recipients;
- The identify of others mentioned in the document;
- If the witness wrote the document, what he meant by certain passages;
- If the witness didn't write the document but did receive it, whether he took any action as a result of reading the document;
- Whether the facts contained in the document are accurate, and why or why not;
- Whether the events described in the document are described correctly, and why or why not;
- Whether the witness agrees with the way particular passages are phrased, and why or why not;
- Whether the document refreshes the witness's recollection on points about which the witness claimed to have no memory;
- Whether the witness reviewed the document in preparation for the deposition;
- Questions meant to authenticate the document for trial;
- Questions meant to establish foundational elements for use of the document at trial.
Note that these questions can be mixed or matched, used or not used, as the situation merits and in any order.
See also these related posts:
In a past post, I wrote about questions you should ask in every deposition. Here are a few more key questions when the deponent is a defendant doctor in a medical malpractice case:
- Whether the doctor has ever had a medical license suspended or revoked;
- The contents of the doctor's medical records, if handwritten and hard to read;
- Whether the doctor's preparation for the deposition included the review of any medical literature, and if so, what it was;
- Whether the doctor, in his view, committed any errors of judgment in their treatment of the patient;
- Conversations about the event with the patient, family members or other doctors;
- The doctor's understanding of medical definitions important to the case, and whether these definitions are commonly accepted in the medical community.
Source: "15 Key Deposition Techniques in a Medical Malpractice Case," by Gerry Oginski writing at the South Carolina Trial Law Blog.
Though there are rules in most jurisdictions requiring objections to be concise, this doesn’t mean some lawyers won’t still try to make long-winded, rambling objections that suggest the answer to the deponent. How do you prevent opposing counsel from coaching witnesses with such “speaking objections”?
Examples of speaking objections are easy to come by. “Objection, that question has been asked already, and the witness already said no. Asked and answered.” “Objection, vague. I don’t understand that question. What do you mean by ‘epidemiology?’ Are you talking only about statistically significant finding? Or not?”
Even the common practice of telling the deponent “If you know” after you ask your question constitutes a speaking objection as far as I'm concerned.
To shut down speaking objections, you have to speak up -- loudly and with conviction -- the first time your opposing counsel tries to amplify on simple objections to form or foundation. Don’t be afraid to interrupt once the behavior starts. In fact, you should interrupt. By raising your voice and talking over opposing counsel, you’ll insure both that the reporter takes down what you say and that the witness hears you rather than the opposing counsel, who will most likely stop talking anyway.
Try something like this: “Stop right there. You’ve made your objection. Anything else is a speaking objection, and there aren’t going to be any speaking objections today.”
In my experience, this is all it takes to shut down the speaking objections before they start. There are exceptions, of course--lawyers who will take your interruption as an opportunity for a chest-thumping retort. Don’t take the bait by getting drawn into an argument. Simple wait for the next speaking objection and, if it comes, tell the opposing lawyer that it’s now happened twice. If it happens again, you are going to end the deposition and seek a remedy with the court.
Your threat can’t be idle. As is good practice before any deposition begins, you should have already familiarized yourself with the rules applicable to the particular deposition for seeking court intervention. You probably won’t need to do this, but you’ll feel better knowing the circumstances under which speaking objections by your opposing counsel will give you an opportunity to seek the court’s help in shutting the practice down.
For many more deposition tips, see my book, "Deposition Checklists and Strategies" (James Publishing 2006).
When the witness might have participated in a search for documents about a case, it makes sense during the deposition to ask the witness questions about your request for production of documents. This suggestion works for two types of witnesses: (a) the witness who is the opposing party in the case, e.g., the plaintiff or defendant and (b) the witness who works for the opposing party in the case, e.g., the marketing supervisor for the defendant ladder manufacturer in a products liability case.
The questioning is simple. Bring your production request to the deposition, mark it, and go through the various requests with the witness. Ask questions like the following--
- Did the witness assist in the search for documents?
- Who was in charge of the search?
- What was the witness asked to do?
- What did the witness do to insure he located all relevant documents?
- What documents did he locate?
- What did he do with the documents?
- Does the witness know of relevant documents that weren't produced?
- Does he know of areas that should have been searched that weren't?
The goal of this exercise is obvious: to find out whether a proper search was conducted and to insure that nothing was withheld. If you didn't get everything, you can follow up as necessary after the deposition, unless the missing documents are critical to the deposition, in which case the deposition might have to be postponed.
For lawyers new to depositions, it’s common to wonder what happens to the objections that are made during the proceeding. They are reserved for ruling at a later time, but exactly when and how?
Objections made during depositions are typically ruled upon by the trial court either just before trial or sometime during trial at a time when the jury isn’t present. In many jurisdictions, there is a procedure that ensures the parties will work out as many of the objections as possible before the court gets involved. In federal court, for example, each side typically designates the portions of depositions they want to use in their pre-trial package. The other side then states its objections to these designations. Objections to the form of particular questions (leading, vagueness, compound, etc.) will be stated during the depositions; other evidentiary objections (hearsay, prejudicial, improper opinion, etc.) might not be raised until the time for the pre-trial submissions.
After the parties have tried to narrow the objections as much as possible, the judge gets involved by ruling on the remaining objections, typically on the record while both sides are present to argue their respective positions. In a lengthy trial with many depositions, the court might not take up the objections to a deposition until a time shortly before the deposition will actually be used.
As the court makes its rulings, the lawyers for both sides take careful notes so that properly-edited deposition transcripts or videos can be prepared to present to the jury.
When a deposition involves an event that occurred at a specific scene, try to visit the scene as part of the your deposition preparation. Examples: the intersection where a car accident occurred; the parking lot where a plaintiff slipped on ice; the towboat where a deckhand threw out his back pulling a ratchet. Not only is a site visit good practice, but you’ll find it much easier to formulate relevant questions when you and the witness both share the same points of reference.
An article titled "What court reporters want" from the Illinois Bar Journal contains these tips from reporter Andrea Trippi Else--
- Fax the case caption to the court reporter in advance of the deposition;
- When you arrive at the deposition, give the reporter a business card with a notation as to which party you represent;
- Speak slowly and clearly, especially when reading from a document, when your natural tendency is to speed up;
- Make an extra set of exhibit copies for the reporter;
- Don't speak over others, and advise the deponent to do the same;
- Don't cheat the reporter by providing a copy of the transcript to your opponent in exchange for splitting the costs.
The full article appears in the October issue of the Illinois Bar Journal on page 514. ISBA members can find it here.
Throughout my book Deposition Checklists and Strategies (James Publishing), you’ll find sample depositions for specialized witnesses such as experts, corporate representatives, and treating physicians. These sample depositions can be applied to causes of action other than the one that’s the subject of the chapter in which the sample depositions happen to appear. Some examples:
Experts:
- Ch. 4 Products Liability, IV. Sample Deposition: Defendant’s Causation Expert in a Defective Drug Case.
- Ch. 7 Insurance Coverage Disputes, IV. Sample Deposition: Defendant’s Roofing Expert in a Property Damage Case.
- Ch. 2 Vehicular-Liability, V. Sample Deposition: The Defendant’s Accident Reconstruction Expert.
Corporate Representatives:
- Ch. 4 Products Liability, III. Sample Deposition: Corporate Designee—Design and Testing.
- Ch. 7 Insurance Coverage Disputes, III. Sample Deposition: Corporate Designee in a Health Insurance Denial Case.
Treating Physicians:
- Ch. 4 Products Liability, IV. Sample Deposition: Plaintiff’s Treating Physician (Preservation Deposition for Trial).
- Ch. 5 Medical Malpractice, V. Sample Deposition #3: Treating Physician.
For more information about the book, see this brochure from the James Publishing website.
In a post called "Deposition Tips for the Young Lawyers Out There," the anonymous author notes that in his first few depositions, he wasn't exactly sure what to do about witnesses who couldn't recall the details about the subject of the deposition. He advises now to take things "step by step"--
My first couple deposition were very hard for me. The witnesses always seemed to have “forgotten” details about the accident. Now I know that this is what is supposed to happen in a deposition, but with the little experience that I had at the time, I just couldn’t figure out how to get around the dreaded, “I cannot recall.” It seemed that no matter what I said, the witness couldn’t remember a thing. Later on and with more practice, I found that laying a foundation and taking it one step at a time really helped.
The post doesn't suggest particular questions to ask, but most lawyers will agree that in initially getting the witness's story out, the question "And what happened next?" works very well. After the outline emerges, you can go back and pin down the details with more specifically-worded questions.
"Video Deposition Tips" is a short article from Fade to Black Productions. Read it to learn more about the following tips:
- Hold the deposition at the home or office of the deponent;
- Discuss wardrobe options with the witness;
- Make sure the background is pleasing;
- Be aware of any nervous habits the witness may have;
- Sit next to the camera lens;
- Keep the direct examination short;
- Illustrate the testimony with photos, charts, or models;
- Make sure to take a lunch break;
- Make sure you can understand the witness;
- Set up the exhibit shots before the deposition.
Neglecting to have a client review his or her prior interrogatory responses is an especially common deposition-preparation error. Without this review, consistency in the client's sworn responses becomes difficult to achieve, especially when the facts of the case are complex or the passing of time is causing memories to fade.
When preparing witnesses for depositions, make sure they review all their prior sworn responses, including past testimony, affidavits, and interrogatory answers.
In case you're looking for my three podcasts on advanced deposition techniques, which I posted at Legal Underground, I'm reprising them here--
Advanced Deposition Techniques #1: Five Tips for Asserting Control at Depositions
Advanced Deposition Techniques #2: Four Ways to Use Psychology at Your Next Deposition
Advanced Deposition Techniques #3: Miscellaneous Tips for Expert Depositions
Combined, these three podcasts have had nearly 1,500 downloads, which is more than I thought possible for something as dry as depositions. Maybe I'll do some more!
The book I wrote about depositions, Deposition Checklists and Strategies (James Publishing, 2006), contains seven chapters. As a bonus, each chapter contains an assortment of "practice tips," comparable to the type of tips I post here on the weblog. In a few cases, the posts and practice tips even overlap a bit.
Chapter 2, Vehicular Liability, contains these practice tips:
- Practice Tip: Don’t Overlook Potential Defendants
- Practice Tip: Know the Statutory Law of Your State
- Practice Tip: Discover and Attack the Facts Upon Which the Defense Is Based
- Practice Tip: Inspect the Scene
- Practice Tip: Secure the Automobile If It Is a Total Loss
- Practice Tip: Consult With Your Client’s Doctor
- Practice Tip: Learn to Do Informal Discovery
- Practice Tip: Abstract Depositions as You Go
- Practice Tip: How to Use Experts in an Auto Case
- Practice Tip: Putting the Witness at Ease
- Practice Tip: Driving Experience and Licensure
- Practice Tip: Estimates of Times
- Practice Tip: Establishing Fatigue
- Practice Tip: Lack of Damage as Evidence of Negligible Force
- Practice Tip: The Time, Speed, Distance Formula
- Practice Tip: The Expert’s Knowledge and Understanding of Case-Related Facts
- Practice Tip: Testimony From the Expert Supporting Your Theory of the Case
Chapter 6, Employment Discrimination and Termination, contains these practice tips:
- Practice Tip: Duty of Good Faith and Fair Dealing
- Practice Tip: The Plaintiff’s Employment File
- Practice Tip: The EEOC
- Practice Tip: Screening Employment Cases
- Practice Tip: Defining “Document” to Include Information in Electronic Format
- Practice Tip: Consider the Use of a Corporate-Representative Deposition on Electronic Discovery Issues
- Practice Tip: Other Steps to Take Where Electronic Information Is at Issue
- Practice Tip: Advantages of Receiving Information in Electronic Format
- Practice Tip: Admissibility of Employee E-Mails
- Practice Tip: Explore All Categories of Damages
- Practice Tip: Deposing the Alleged Harasser
- Practice Tip: Plaintiff’s Credibility
- Practice Tip: Getting Assent to Principles With Which the Witness Cannot Disagree
Deposition Checklists and Strategies is available through James Publishing. For a detailed brochure about the book, look here (pdf).
Related Post: "My Coverage of Expert Depositions in Deposition Checklists and Strategies"
Illinois Supreme Court Rule 212(a)(5) seems to clearly prohibit the use of a deceased plaintiff's discovery deposition as evidence at trial:
(a) *** Discover depositions taken under the provisions of this rule may be used only:
5) upon reasonable notice to all parties, as evidence at trial or hearing against a party who appeared at the deposition or was given proper notice thereof, if the court finds that the deponent is neither a controlled expert witness nor a party, the deponent’s evidence deposition has not been taken, and the deponent is unable to attend or testify because of death or infirmity, and if the court, based on its sound discretion, further finds such evidence at trial or hearing will do substantial justice between or among the parties.
Rule 212(a)(5) (emphasis added).
In Longstreet v. Cottrell, Inc., No. 5-06-0316 (5th Dist. 2007) (pdf), the plaintiff argued that 212(a)(5) should not bar the use at trial of a discovery deposition of a deceased plaintiff if the deposition was also admissible under 212(a)(3), which states that a discovery deposition can be used at trial "if otherwise admissible as an exception to the hearsay rule." According to plaintiff's theory, the discovery deposition would be "otherwise admissible" under the former-testimony exception to the hearsay rule.
Though a worthwhile argument, the Fifth District rejected it, finding itself unable to support an exception to the express prohibition of 212(a)(5)--
The policy in Illinois, as established by the Illinois Supreme Court, specifically disallows the interpretation advanced [by plaintiff]. Given the express prohibition of the use of a deceased party's discovery deposition in Rule 212(a)(5), we are not able to interpret Rule 212(a)(3) to let in portions or the entirety of such a deposition as former testimony. There is no Illinois case law or treatise language directly on point supporting [plaintiff's] theory throughout the 50-plus years that Illinois has recognized the two types of depositions.
The case is recommended for its review of the uses at trial of discovery and evidence depositions, as well as its discussion of the application of the former-testimony exception to the hearsay rule to depositions.
According to researchers from the University of Portsmouth, the best way for police detectives to spot liars is to "make the suspect repeat his or her version of events in reverse order."
The claim is made in this article in the UK Times: "Can the suspect tell his story backwards? If not, he's lying," by Michael Horsnell.
Will it work in depositions? I've never tried it myself, but maybe I will.
The idea is that a made-up story is difficult enough to remember in the right order. If asked to remember the story in reverse, the witness is bound to make mistakes.
The technique would seem to work best in a case that involves first, a central, key narrative like a car accident or a work injury and second, a witness who has a strong motive to lie.
Thanks to a reader for the link to the article.
A reader wrote to take issue with my last post, "Corporate-Representative Depositions: Are You Limited to the Topics in Your Notice?" In that post, I wrote about King v. Pratt & Whitney, which holds that a questioning lawyer is not limited to the topics in a corporate-representative notice. After quoting from the case, I wrote that it "represents the minority view." This was the part of the post that the reader questioned.
Since I didn't do a survey of federal or state law on the issue, it would have been better to say simply that there is a split in authority on the issue. As for state courts, I don't have a good sense for the way courts have interpreted state-court rules equivalent to Fed. R. Civ. P. 30(b)(6) on this issue, if at all. As for federal courts, Moore's Federal Practice notes that there is a "split of authority as to the scope of examination of a witness produced pursuant to a Rule (30)(b)(6) notice." 7-30 Moore's Federal Practice 30.25[4]. In Moore's, there follows a discussion of Paparelli v. Prudential Ins. Co., 108 F.R.D. 727 (D. Mass. 1985), which holds that "the deponent may only be questioned regarding issues described in the notice." Moore's next discusses the King case, stating that it is better-reasoned:
The better view is reflected in the decision . . . that a Rule 30(b)(6) deponent may be questioned as broadly as any other deponent. This court felt that the "reasonable particularity" language [of 30(b)(6)] does not limit the scope of examination, but rather informs the entity of the information the designated deponent must be able to supply. The court reasoned that the purpose of Rule 30(b)(6) is not to provide greater notice or protection to corporate deponents, but rather to have the correct person present at the deposition. If a corporate deponent designee is unable to answer a question, he or she may simply so advise deposing counsel and further deposition before a more knowledgeable corporate representative may be arranged.
Id.; seealsoCabot Corp. v. Yamulla Enters., Inc., 194 F.R.D. 499, 500 (M.D. Pa. 2000) (scope of Rule 30(b)(6) deposition is not limited to matters described in the notice); Detoy v. City and County of San Francisco, 196 F.R.D. 362, 366 (N.D.Cal. 2000) (same).
When you take a corporate-representative deposition, how closely must your questions be correlated to the topics in your deposition notice?
In many jurisdictions, you won’t be allowed to ask about other, unrelated topics. This is not the rule everywhere, however. See, e.g., King v. Pratt & Whitney, 161 F.R.D. 475, 476 (S.D. Fla. 1995). In King, the court suggested a framework for handling questions outside the scope of a corporate-representative notice. To quote from the case:
1) Rule 30(b)(6) obligates the responding corporation to provide a witness who can answer questions regarding the subject matter listed in the notice.
2) If the designated deponent cannot answer those questions, then the corporation has failed to comply with its Rule 30(b)(6) obligations and may be subject to sanctions, etc. The corporation has an affirmative duty to produce a representative who can answer questions that are both within the scope of the matters described in the notice and are "known or reasonably available" to the corporation. Rule 30(b)(6) delineates this affirmative duty.
3) If the examining party asks questions outside the scope of the matters described in the notice, the general deposition rules govern (i.e. Fed.R.Civ.P. 26(b)(1)), so that relevant questions may be asked and no special protection is conferred on a deponent by virtue of the fact that the deposition was noticed under 30(b)(6).
4) However, if the deponent does not know the answer to questions outside the scope of the matters described in the notice, then that is the examining party's problem.
Although King represents a minority view, it makes sense to check the court cases in your own jurisdiction before your next corporate-representative deposition. If your questions are not limited to the topics in the notice, this is something you will want to know ahead of time, in the event the deponent’s answers take you in new, unexpected directions.
Note: This post is a draft of a practice tip for the next supplement to my deposition book, Deposition Checklists and Strategies (James Publishing 2007). I have more on this same issue in my next post.
My book Deposition Checklists and Strategies, recently published by legal publisher James Publishing, contains the following seven chapters:
- Deposition Procedures and Strategies
- Vehicular Liability
- Premises Liability
- Products Liability
- Medical Malpractice
- Employment Discrimination and Termination
- Insurance Coverage Disputes
Each chapter begins with an analysis of the substantive law from the plaintiff's point of view, followed by an overview of the typical defenses. Each chapter also includes a discovery plan, sample depositions and commentary, numerous practice tips and sample forms. At the James Publishing website, you'll find the complete table of contents, along with an overview of the book, which costs $99, not including the annual updates.
Related post: "My Coverage of Expert Depositions in Deposition Checklists and Strategies"
The May, 2007, issue of the Illinois Bar Journal includes an article titled "Oppositional depositions - telling your client not to answer," by Helen Gunnarsson (for-pay link, I think).
In the article, Gunnarsson explores the recent federal case of Redwood v Dobson, 476 F3d 462, which I wrote about here, and analyzes similar issues under the Illinois rules.
She kindly talked to me for the article, asking how I would approach questions in a discovery deposition that I didn't think were designed to lead to discoverable information. Would I instruct the witness not to answer, or would I just keep my mouth shut, waiting for the 3-hour time limit to expire? My answer--
Schaeffer says that these issues seldom come up in his practice because "the lawyers keep on track." But if he were presented with a question from the other side that he felt did not meet the standard for discovery or evidence, he opines that in a state court case he would instruct a witness not to answer.
"I'd always do this before deciding just to let the clock run out - lots of mischief can be accomplished in three hours." Schaeffer comments that "even in a close case, the other lawyer is unlikely to file a motion about the question you've just instructed a witness not to answer. It's a combination of knowing they were close to the line of a permissible question, they don't really need the information, and they don't want to bother with a motion."
There's more detail in the article. Anyone interested in the application of the Illinois rules to the problem presented in Redwood v. Dobson probably has access to the article as an ISBA member.
If you're uncertain about whether to object to a deposition question because you're not sure you heard it correctly, ask the reporter to read the question back. The procedure is simple: just say, "Read the question back, please" before the witness answers. But don't overdo it. I've encountered lawyers who think they can use this technique to distract the questioning lawyer and slow the deposition down. If done for this reason, asking the reporter to read questions back is clearly improper.
I've always thought that it's depositions of experts that are the most interesting and fun to do. In keeping with my interest in expert depositions, I made sure to cover them at length in my book Deposition Checklists and Strategies.
Please excuse this brief commercial, but I wanted to digress from this weblog's usual fare to point out some of the book's contents. The coverage of expert depositions includes a detailed book section about the basics of expert depositions, including eight sections on "the Goals of Expert Depositions," ten sections on "How to Prepare for Expert Depositions," and seven sections on "Expert Depositions Strategies." Some of these separate sections include some of the "practice tips" I've listed below.
In addition, the book includes questions and answers from three full expert depositions:
- Sample Deposition: Defendant’s Causation Expert in a Defective Drug Case.
- Sample Deposition: Defendant’s Roofing Expert in a Property Damage Case.
- Sample Deposition: The Defendant’s Accident Reconstruction Expert.
These sample depositions serve as a template for deposing any kind of expert.
Finally, spread throughout the book, you'll find separate sections containing "practice tips" for expert depositions. Here are some of them:
- Practice Tip: Attempting to Strike the Expert
- Practice Tip: Five Ways to Hit Home Runs With an Expert’s CV
- Practice Tip: Privilege and Experts
- Practice Tip: “Why Is That?” and Other Follow-Up Questions That Never Fail
- Practice Tip: What to Do When You Arrive for an Expert’s Deposition
- Practice Tip: What to Do When the Defendant Buries You With Experts
- Practice Tip: Establish the Role the Defendant’s Lawyer Played in Assisting the Defendant’s Expert
- Practice Tip: How to Move Quickly Through the Expert’s File
- Practice Tip: Catch the Expert Unprepared (by Finding Out What He Hasn’t Read)
- Practice Tip: Asserting Control Over the Witness Early in the Deposition
- Practice Tip: When and How Was the Expert Retained
- Practice Tip: What the Expert Did Not Do
- Practice Tip: E-Mails
- Practice Tip: Pinning Down the Expert
- Practice Tip: You Don’t Need to Be Smarter than the Expert
- Practice Tip: Using the Deposition to Cross-Examine at Trial
There's all this and much more about experts in the book. That concludes this brief commercial. If you want to learn more, look here: Deposition Checklists and Strategies (James Publishing 2006).
While I warned in a previous post that many witnesses are liars, a more common type of false testimony is overstatement and exaggeration. This sort of "minor" falsification is characteristic of the sort of casual, inexact way of speaking that all of us regularly use in our everyday lives. It's a way of speaking, however, that doesn't translate well when used in a deposition or the courtroom.
Ex: "Before this car accident, I never suffered any medical problems in my entire life."
Ex: "It's impossible to find backups of last year's emails."
For a lawyer wishing to confront exaggeration and overstatement, it's sometimes hard to know how to respond. You can't simply say, "I don't believe you. Please give me the real answer." But you can do something very close. Or, at least, some experienced lawyers can. The trick has everything to do with body language and tone of voice. I know because I've been on the receiving end of such treatment. Even when it's damaged my own witnesses, however, I've always admired the ability of the lawyers who were old and wise enough to pull it off.
How do they do it? It's a matter of demonstrating a complete lack of faith in the witness's answer by, perhaps, raising the eyebrows in a mock expression of disbelief. Then the lawyer repeats the witnesses' last answer but gives it a special spin. "Mr. Smith, do you really mean to tell me that . . . " or "Doctor, certainly you can't mean that . . . ." or "Mr. Jones, I'm certain I didn't understand you correctly. You mean to tell me that . . . " A simpler alternative is to omit the preamble and simply repeat the witness's answer with the prerequisite disbelieving expression and tone of voice. "Smoking isn't associated with lung cancer?"
The approach can also be accomplished in a light-hearted manner. I'll never forget the time an opposing lawyer caused one of my experts to become completely unglued at a deposition simply by chuckling at his answers and repeating the phrase, "C'mon doctor, it's just can't be the case that . . . "
Some witnesses would have become defensive and dug in their heels at questions like these, but this witness was especially susceptible to the mocking approach. It's an approach I try to keep in mind when I'm doing my own depositions. In my notes, I call it the "c'mon doctor" approach. Although experts seems more susceptible to this treatment than fact witnesses--perhaps because experts are more concerned about how other professionals are assessing their credibility--the approach can work on all types of witnesses, assuming they're actually engaging in exaggeration or overstatement.
"Oh, c'mon, Mr. Witness. No medical problems in your entire life? Is that what you really mean to say?"
Of course, questions like these can often be objectionable. They start to become argumentative pretty quickly, for example. But it's easy to simply restate the question after the other side objects. Let the witness answer subject to the objection, then back up a step. This time the witness will know you're on to him. "I'm going to ask my question again. What medical problems did you have before the accident?"
Although it's not always an easy technique to pull off, the method described in this post can be a very effective way of coping with exaggeration and overstatement by certain witnesses.
In preparing for a deposition, it's easy to slip into this mindset: anything that's relevant to the case is already contained in the file. Review the file and that's enough.
It's lazy thinking. In these days when information is cheap, it always makes sense to query Google about your witness. When you're done there, do a search in a comprehensive news database like those found at Westlaw or Lexis. You'll never know what you'll turn up.
Often, witnesses have their own websites. This is especially true of experts. When reading the expert's website, look for mistakes, exaggerations, and anything that might contradict the testimony the witness is expected to give at trial.
For more tips like this one, see the deposition and expert categories on this website, as well as my book, Deposition Checklists and Strategies (James Publishing 2006).
The latest "Thinking E-Discovery" column is up at DiscoveryResources.org: "Incorporating EDD into Your Depositions - the 5Ws of EDD Depositions," by Dennis Kennedy, Tom Mighell, and me.
Thanks goes to team leader Dennis Kennedy for coming up with the column's concept, as he always does. Our past columns are also available at Discovery Resources:
In the recent case of Adams v. Sarah Bush Lincoln Health Center (pdf), a defendant appealed a ruling by the trial court preventing it from reading questions from the plaintiff's evidence deposition of a treating physician in its own case-in-chief. In affirming the trial court, the Fourth District made several points about Illinois evidence depositions that are useful to remember:
- Cross-examination during an evidence deposition must be conducted as though the deponent were testifying at trial. Rule 206(c)(2);
- As at trial, the scope of cross-examination is limited by the scope of the direct. There is a good illustration of this principle at work in the case;
- The scope-of-direct rule also works as a limititation on Rule 212(c), which otherwise allows a party to respond to the reading of an evidence deposition by counter-reading those parts of the deposition "which ought in fairness to be considered in connection with the part read or used."
If you want evidence from a witness the other side has noticed for an evidence deposition in your own case, you may have to do your own evidence deposition, especially if your opponent doesn't cover in direct those topics you'd like to get into for trial. Even if your opponent does cover your topics of interest in direct, you cannot rely on him to use the deposition in his own case. If he doesn't, you'll be out of luck, since you cannot cross-examine the witness and then seek to have the cross-examination admitted into your own case-in-chief.
The Adams case suggests a failsafe procedure. If your opponent notices an evidence deposition of a witness from whom you also need testimony, you can use his deposition notice as an opportunity to conduct your own evidence deposition. Rule 206(b) provides that "when a notice of the taking of a deposition has been served, any party may take a deposition under the notice."
Do you use del.icio.us to store your Internet bookmarks? I do. So do many others, lawyers included.
It's not surprising that you can use del.icio.us to find deposition tips. Simply search del.icio.us for "depositions" or browse the posts stored under the tag "deposition."
It didn't take me long to find an old favorite of mine, a guest post at Legal Underground titled "Things They Didn't Teach Me About Depositions in Law School." Recommended.
Some lawyers insist on videotaping discovery depositions of opposing experts. Though it adds an additional case expense, impeachment during the later cross-examination at trial can have more impact using video than just a dry deposition transcript.
Related posts:
1. "How to Cross-Examine at Trial with Inconsistent Statements"
2. "Impeaching at Trial with a Prior Inconsistent Statement: How to Validate First"
From The Psychiatrist Blog comes news that "witnesses are potentially highly suggestible and words are important"--
In one example participants were shown a 30 second videotape of 2 cars colliding, then they were asked questions about the collision. Some participants were asked "About how fast were the cars going when they hit?’ For other people the word ‘hit’ was replaced by ‘smashed’, ‘collided’, ‘bumped’ or ‘contacted’. These words have very different connotations regarding both the speed and force of impact, and this was reflected in the estimated speeds given.
In one example participants were shown a 30 second videotape of 2 cars colliding, then they were asked questions about the collision. Some participants were asked "About how fast were the cars going when they hit?’ For other people the word ‘hit’ was replaced by ‘smashed’, ‘collided’, ‘bumped’ or ‘contacted’. These words have very different connotations regarding both the speed and force of impact, and this was reflected in the estimated speeds given.
In short, be aware of the connotations of the words you choose. It's an important point not only when you're questioning a witness, but also when you're addressing a jury. Meanwhile, if you're on the other side of the table, be on the alert for objectionable misuses of too much "suggestion." A question about the speed of two cars that had "smashed," for example, would lack foundation if the smashing hadn't yet been established by the witness. The question would also be vague and, perhaps, argumentative.
Thanks to a reader for tipping me off to the post at The Psychiatrist Blog.
Never assume the best of witnesses. Perhaps you wouldn't try to shade the truth if you were being deposed, but that's not true of many witnesses. When taking depositions, a little cynicism goes a long way. Unless you're certain otherwise, assume the witness is lying.
There are a number of ways witnesses can try to fool you at depositions. Here are just a few:
- The witness can knowingly make a false statement. “The light was green,” he might say, when he knows it was red.
- The witness can state he doesn’t know the answer to your question when, in fact, he knows the answer very well.
- The witness can say “I don’t remember,” when, in fact, he does remember.
- The witness can give one of the words in your question a meaning he knows is false, so that he can answer your question in a way that seems to be accurate, though it really isn’t. “It depends on what the meaning of the word is is,” said one famous deponent.
- The witness can answer a question that you didn't ask, hoping you won't notice.
In one of my deposition podcasts, I noted that you should be on alert for witnesses who give away their deceptions in the way they give their answers. If you think a witness is trying to fool you, don’t be bashful about circling around and starting the line of questions from a new angle. "Muck around in it," a lawyer I know used to say. Wear the witness down by refusing to give up. Make it clear that the deposition won't end until you get full, truthful, and complete answers.
"This is a grudge match," begins Judge Easterbrook's opinion in Redwood v. Dobson. The case concerns bad behavior by lawyers in depositions. It's an opinion with an undeniable entertainment value, though you have to keep in mind, as Easterbrook himself points out, that the behavior by the lawyers described in the case is "not as bad as the insult-riddled performance by Joe Jamail that incensed the Supreme Court of Delaware."
If you're keeping score, lawyers on both sides of the case behaved badly. By the end of the opinion, Easterbrook takes it upon himself to "censure" some of them and "admonish" another, the latter sanction being not so harsh as the former. Here's a recounting of some of the lawyers' wrongs--
- Asking harassing questions;
- Feigning an inability to remember;
- Pretending not to understand ordinary words;
- Giving improper instructions not to respond.
Did I mention the deponent was a lawyer? If you decide to read the case for its practical tips, Easterbrook's opinion explains the few circumstances in which a deponent can be instructed not to answer a question under the federal rules. "A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under Rule 30(d)(4)." Note that being harassed isn't on the list. In that event, the defending lawyer must call off the deposition and apply for a protective order.
The deponent, meanwhile, may be entitled to "stalk out of the room," though that part of Easterbrook's opinion might merely be dicta.
Although this checklist of issues for treating physicians isn't meant to be comprehensive, it contains some areas of questioning you might want to consider--
- Treatment of plaintiff
- Lay foundation for opinions
- Causation Issues
- Accident/event causing injury
- Ruling out other causes, including those proposed by defense
- Lack of pre-existing problems
- Damage Issues
- Pain suffered by plaintiff, past and future
- Plaintiff's disability, past and future
- Prognosis and need for future medical care
- Foundation for medical bills
- Evidentiary issues
- Demonstrative aids, foundation
- Medical treatises and articles, foundation
If the treating physician is hostile to your position and has given testimony that undermines your case, consider approaching him as you would any opposing expert, by drawing attention to his lack of expertise or the lack of foundation for his opinions. There's a whole range of ideas in this post: "Preparing for Expert Depositions by Looking Ahead to the Cross-Examination at Trial."
For much more about deposing treating physicians, see my book Deposition Checklists and Strategies (James Publishing 2006).
Related post: "Plaintiffs' Lawyers: Meet with the Doctor."
A few of the cases I'm working on are in full deposition mode, which means I've had plenty of travel time to do some thinking about the two most common deposition errors and how to learn from them.
One of these two errors I observe most often in plaintiffs' lawyers, the other in defense lawyers. I'll admit up front that I'm guilty of both, even though at this point in my career, I usually represent plaintiffs.
Plaintiffs' Lawyers Perhaps it's because plaintiffs' lawyers aren't paid by the hour that some don't do enough preparation before a deposition begins. This is known in the trade as "winging it," and it doesn't work well at depositions, even if a lawyer has so much style that an outsider might mistake it for substance. I've already written about this error in another post, "The Dangers of Winging It in Depositions." There's a solution for this problem, which I don't need to repeat again here.
Defense Lawyers Perhaps because defense lawyers are paid by the hour, they often have the opposite problem: preparing too much. To be fair, it's not the preparation that's the problem, it's the way the preparation--which usually takes the form of a lengthy outline--ties the lawyer down to a single way of thinking, thereby preventing him from following the witness down potentionally fact-filled alleys when the witness unexpectedly turns in those directions. Glued to his outline, this lawyer couldn't wing it even if he tried. The result is that a good opportunity to move the case forward is wasted.
I don't mean to suggest that outlines are unnecessary. (That would be professionally stupid, since I wrote a book about them.) To the contrary, outlines are a recommended means of preparing for a deposition. You just have to know when to cast them aside. As both of my two common errors derive, in part, from attitudes towards deposition outlines, I'll add a few other prior posts that touch on these issues, "Deposition Outlines: Should You Write Out Every Question," and "Depositions: Are Outlines Uncool?"
Can lawyers ask leading questions during federal-court depositions? If so, when?
Under federal rules, the examination and cross-examination of witnesses during depositions proceeds “as permitted at trial.” Fed.R.Civ.P. 30(c). This means that the propriety of leading questions is determined just as it would be at trial.
The issue of leading questions at trial is the subject of Federal Rule of Evidence 611(c)—
Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, and adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.
To determine whether leading questions are permitted at a federal-court deposition, ask yourself the following questions:
- Is the leading question in direct or cross-examination? The lawyer who noticed the deposition and who starts asking questions first is doing the direct examination; other lawyers are cross-examining. Under Rule 611(c), leading questions are permitted during cross-examination.
- If the leading question is begin asked during direct, is there another permissible reason for it, such as the development of the witness’s testimony or the fact that the witness is adverse to the questioning lawyer? If not, leading questions are impermissible under Rule 611(c).
In real-life practice, of course, lawyers will ask leading questions during depositions even when they aren’t strictly permissible, waiting to see whether you object. When you are the examining lawyer, you can take the same approach—ask leading questions when you want unless and until the other side objects.
An objection to a leading questions is a form objection that is waived unless it is made at the time the question is asked. See Fed.R.Civ.P. 32(d)(3)(A) (“Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time”) (emphasis added).
I finally got to see my completed manuscript between covers last week when I received my first copies of Deposition Checklists and Strategies. The book seemed solid and bulky and complete, but that's not the whole story: as I've said before, the book is still a work in progress, and always will be, since I'll be updating it each year with new outlines, commentary, practice tips, and entire chapters. In fact, I'm already working on them!
To that end, I wanted to write this note to all readers of Deposition Checklists and Strategies (and hopefully there will be lots of you): please let me know what else you'd like to see in the book, and chances are I'll add it. I'm open to all feedback, criticisms, suggestions--just send me an email.
Although I'll carry on absent the sort of dialogue I'm suggesting, the task of updating and revising the book will be much more enjoyable and worthwhile with your input. Thanks in advance for your help!
Juries in personal injury cases generally hear two versions of the medical facts, each presented by an opposing group of experts. If this isn't confusing enough, there's also testimony about the medical facts from the treating doctors, who may not agree with any of the experts. The treating doctors might disagree with each other too.
How can you help the jury sort it out? If the better set of experts and treating physicians is on your side, emphasize this point with a chart that compares your doctors and experts to their doctors and experts. Here are some points of comparison you might use:
- Where the doctors went to medical school;
- The doctors' board certifications;
- The doctors' research interests;
- The doctors' publishing history;
- The doctors' teaching experience.
In closing, you can use the chart to point out that the most qualified doctors and experts support your view of the case. Example: "You heard a lot in this case about a diagnosis of adhesive capsulitis, which was presented mostly through the testimony of Dr. Jones. Remember Dr. Jones? He's the doctor who said he's not yet board certified, though he's 'working on it.' Let's take a closer look at Dr. Jones--let's compare his credentials to those of Dr. Smith, who disagreed with him about the diagnosis of adhesive capsulitis. Dr. Smith should know about adhesive capsulitis. He's treated it every single day, day in and day out, for more than twenty-five years. He's published more than thirty articles specifically on the topic -- adhesive capsulitis has been his primary research interest since just after he graduated from Harvard medical school. Not only is Dr. Smith board-certified in orthopedic surgery, but he helps to write and administer the board-certification exam to new doctors and teaches orthopedic surgery to medical students. Now let's look at Dr. Jones. Dr. Jones isn't board certified, has never published on adhesive capsulitis, and has only done original research about knees, not shoulders. Although he treats shoulders in his practice, he's only been doing it for two years--no, sorry, only a year and a half, only eighteen months."
The example is a little over-the-top but you get the idea. Although the example relies on only a few points of comparison, there might be many others in any given case. Don't wait until your closing argument to start thinking about them. Instead, get into the habit of viewing the medical part of the case through a points-of-comparison lens. If you do, you'll automatically think about comparisons as you prepare the case, especially when you review C.V.s and depose the treating doctors and experts.
I knew a lawyer who used to say that expert depositions were extremely easy. "You only need to ask a single question," he'd say. "'What are your opinions?'"
Expert depositions aren't quite that easy. Even so, there's something about expert depositions that make lawyers want to boil them down to their bare essence. It's a sort of game, like trying to prove a math theorem in the fewest steps possible.
It's in this spirit that one should read a post at the Trial Lawyer Resource Center: "Expert Witness Deposition: Five Questions To Ask." Here's most of the post--
Expert’s deposition. While there is no substitute for being prepared, you can take an effective deposition "on the fly" by remembering five essential questions and their logical subquestions:
1. Who engaged you in this case.
2. What they ask you to do?
3. What did you do?
4. What conclusions, opinions did you reach and what do you intend to testify to at trial?
It might be the world's shortest expert-deposition outline. Four questions plus a fifth I didn't include--to see it, you'll have to read the original post.
Is it a good idea to start an expert deposition with such a simple plan? If nothing else, the exercise of writing a very short outline is a helpful one, as it will force you to consider what's most important about the deposition.
I'll talk more about this idea in my third podcast on advanced deposition techniques, coming soon.
Related posts:
1. "Preparing for Expert Depositions by Looking Ahead to the Cross-Examination at Trial."
2. Advanced Deposition Techniques, Part 1
3. Advanced Deposition Techniques, Part 2
You'll find my second podcast in the deposition series at Legal Underground: The Legal Underground Podcast Episode #50: Advanced Deposition Techniques, Part 2.
In Part 1, I covered five tips for asserting control at depositions. The new podcast covers four tips for using psychology at depositions.
My book about depositions, Deposition Checklists and Strategies, will be published next month by James Publishing. You can find details at the publisher's website here (pdf) and at Legal Underground.
Your preparation for depositions will generally be much easier if you think about the ways the testimony will be used at trial. This tip applies to most pretrial discovery: it's almost never an end in itself, but something that will be used later in front of a jury. It's no accident that the ins-and-outs of pretrial discovery often make more sense after a lawyer has witnessed some actual trials. When trials are scarce, even reading trial transcripts helps.
The looking-ahead-to-trial tip can be especially useful for deposing your opponent's experts. If you often rely on outlines prepared by other lawyers, this method will also help you understand why it's important to ask the questions lawyers typically ask when deposing experts.
How do you look ahead to trial? Even though every trial cross-examination differs in its particulars, most cross-examinations of experts at trial cover the following points--
A -- Weaknesses in the expert's qualifications or expertise to render the opinions he's rendering;
B -- The expert's lack of preparation to render the opinions he's rendering;
C -- Bias;
D -- Assumptions the expert is making that will be disproved in your case;
E -- Helfpul testimony from the expert that supports your own case.
I've written about these points before. Working from this list, it's easy to see some of the most important areas you'll need to cover when deposing the opposing expert. After all, it's the material you'll get in the deposition that will provide the fodder for the cross-examination. If you do the deposition right, you'll know exactly what the expert is going to say ahead of time, decreasing the risks of cross examination.
Keeping the list above in mind, here is an outline of some of the most important points to cover when deposing an expert witness--
A-- The expert's qualifications and expertise (and lack thereof) in the particular area he's testifying about;
B -- What the witness has done (and has not done) in order to prepare himself to render an opinion;
C -- The expert's past work as an expert witness, especially for the side for which he's testifying in your case, including the income generated from work as an expert witness;
D -- All the expert's opinions; his support for those opinions; and the factual assumptions he's making to reach those opinions;
E -- Points that you will be trying to prove or demonstrate at trial that the expert you are deposing will agree with.
You'll find my latest podcast at Legal Underground: The Legal Underground Podcast Episode #49: Advanced Deposition Techniques, Part 1.
In this part, I cover five tips for asserting control at depositions. Take them for a test drive at your next deposition!
In my practice, it's rare that an opposing lawyer asks at a deposition if I'll agree to "the usual stipulations." When it happens, I always say no. Until I know exactly what the usual stipulations are, how can I agree to them? I need them spelled out first, preferably on the record.
The meaning of a request to agree to the usual stipulations also depends on the jurisdiction. Here are some articles from specific jurisdictions that discuss "the usual stipulations"--
There are also a few thoughts about the usual stipulations in "Deposition Tips," by Ernest Svenson. The gist of all of these sources is as follows: why would you let your opposing lawyer bully you into agreeing to something you don't understand? Have the stipulation spelled out, then agree or disagree based on whether it serves your client's interests. Follow this simple rule and you can't go wrong.
Don't wait until the eve of trial to put together your motion in limine. If you wait until the last minute, you're certain to forget to list items of evidence you should be arguing aren't admissible.
A better idea is to start a list of disputed evidentiary points at the very beginning of the case. Add to the list as the case proceeds. If you're like me, you'll make most of your entries as you take and defend depositions, as it's during depositions that most disputed evidentiary points are first previewed for you by your opposing counsel.
When it comes time to put together your motion in limine, you won't be starting from scratch. You'll have a list of case-specific ideas already composed, which you can add to your usual generic points.
Related posts:
1. A Sample Motion in Limine: Defense Version
2. A Sample Motion in Limine: Plaintiff's Version
3. Motions in Limine Seeking Admission of Evidence
Every jurisdiction has a procedure for correcting transcription errors in a deponent's answers. But what if there are errors in your questions? What if the deponent's answers are recorded correctly ("yes," "no," etc.), but it's your questions that are mangled?
Although I sometimes notice errors in the way my deposition questions are transcribed, usually the errors aren't significant enough to matter. One time was different. It was a deposition I took of the defendant's expert, a cardiac pathologist. It was a highly technical deposition with highly technical words, and I'd spent a good deal of time preparing for it. I also had to travel to New York. I wasn't happy when I saw that the medical terms I'd so carefully used to form my leading questions had been taken down incorrectly--so incorrectly they couldn't be used for impeachment. I had the "yes's" and "no's" I wanted from the witness, but these were worthless as they came after questions I really didn't ask.*
How did I solve the problem? Maybe someone else knows a better procedure, but here's what I did. I simply wrote a letter to my opposing counsel listing all the errors in the transcript. I then asked my opposing counsel to consent to having the reporter fix the errors. It seemed to me that my opposing counsel would agree--first, she'd been at the deposition herself and knew the transcript was messed up just like I did; second, if she didn't agree, she'd have to fend off my attempts to have the judge let me to start over again from scratch. And if I was successful, she'd have to spend her client's money trudging back to New York for another deposition.
What happened next? It was an event that cures lots of problems like the one I had: the case settled. Meanwhile, I'd learned an important lesson about taking depositions. After deposing a doctor, it make sense to spend some time with the court reporter making sure he or she understood the medical jargon. If there are terms that sound very much like the ones you used but have a different meaning, make sure the court reporter uses the correct term. Even give the court reporter a glossary if you have to. It sure beats having spent the time and money taking a deposition that turns out to be useless to you in the end.
*Example for the curious: Early in the deposition, I told the witness that rather than saying "fenfluramine and dexfenfluramine" every time I asked a question about these compounds, I'd simply say "the fenfluramines." The witness agreed this made sense. I then went on to ask many critical questions about "the fenfluramines." In the transcript, however, the reporter mistranscribed almost all these references as "fenfluramine," even dropping the "the." It meant that the witness's yes and no answers were applicable only to fenfluramine but not to dexfenfluramine, which was the main chemical compound at issue in the case. This was only one of many similar errors the court reporter made.
You're preparing for a deposition. You have a stack of documents you may or may not use. Have you read them? If you're like many lawyers, you've merely done a cursory once-over. You're saving the real reading for . . . well, another time.
In "Better Discovery Through Document Management," lawyer Lisa Wood describes a process for reading your stack of possible exhibits before a deposition--
You should immediately note a number of things and consider basic questions such as the following:
- Who prepared the document?
- Who received carbon copies, when was the document dated, when was it faxed or delivered by some other means?
- Who apparently typed the document?
- Is there any handwriting on the document?
- Do you have a complete copy of the document?
- Does the document refer to any other documents, whether as enclosures, attachments, or other forms?
- What prompted the preparation of the document?
- Where does the document fit into the chronology of key events?
- What is important about the document and its contents?
- Is the document consistent with your understanding of the facts?
That's a pretty comprehensive list, and there's much more in Wood's article. Read it to see if you're taking the right approach to documents at depositions.
In the May "Legal Spectator" column in the Washington Lawyer magazine, Jacob Stein writes about the golden age of court reporting, when it was the court reporter, not the lawyers, who were in charge of depositions. (Link from f/k/a.) Titled "Lucius Friedli," Stein's column gives a portrait of a particular court reporter --
Mr. Friedli prospered at a time when there were no computers and no stenotype keyboards. He took it all down in Pitman shorthand. . .
Mr. Friedli announces, “Ready.” Lawyers deferred to him. Mr. Friedli decided when the deposition commenced and when there would be a recess.
If the lawyers interrupted each other, he said, “One of you shut up. I cannot write with both hands.” If the bickering continued despite the warning, Mr. Friedli threw down his pen. This brought temporary civility.
The lawyers respected Mr. Friedli’s judgment concerning witness credibility. If Mr. Friedli thought a witness was lying, he gave a skeptical look at the witness. Lawyers took note.
Stein also writes that Mr. Friedli "had sympathy for young lawyers" and "gave them advice."
Reading about Mr. Friedli got me wondering whether the golden age of court reporting has really passed. As it happens, I know a court reporter just like the one Stein describes. This particular court reporter has been around throughout my career, since the time in 1991 that he gave me advice during breaks at my first major deposition as a new lawyer. (I was successfully pinning the witness down to a single story, but wasn't closing off all the exits.)
Like Mr. Friedli, this court reporter also stops reporting when the lawyers start arguing. Like Mr. Friedli, he telegraphs what he thinks about a witness on his face, so it's easy to get a sense for how a deposition is going simply by looking at his expression. (Once, he didn't return for the second day of my deposition of a particularly mean-spirited corporate representative, saying that the witness was making his blood pressure spike up too much. He sent a replacement.)
Just as this court reporter I'm writing about has followed my career, I've followed his, since the days when his small court reporting company grew larger, then larger still, then merged with a competitor firm to form one of the largest court reporting services in the area. I don't see him as often as I used to, but when he shows up for one of my depositions, it's always a nice surprise and we spend some time catching up.
While Stein is right that the court reporting tools have changed--computers rather than pens and paper--I'm not sure whether court reporters are any different than in years past. If you haven't thought to do it, try getting to know the court reporters who attend your depositions. Not only will it make the practice of law seem more civilized than it really is, but you'll also make some new friends who might be there throughout your career.
According the general rule, the party noticing the deposition of a treating doctor must pay for his time. The general rule is stated in Illinois Supreme Court Rule 204(c)--
Depositions of Physicians. The discovery depositions of nonparty physicians being deposed in their professional capacity may be taken only with the agreement of the parties and the subsequent consent of the deponent or under a subpoena issued upon order of court. A party shall pay a reasonable fee to a physician for the time he or she will spend testifying at any such deposition. Unless the physician was retained by a party for the purpose of rendering an opinion at trial, or unless otherwise ordered by the court, the fee shall be paid by the party at whose instance the deposition is taken.
Rule 204(c). The last sentence contains an exception to the general rule: it does not apply when "the physician was retained by a party for the purpose of rendering an opinion at trial." When the doctor-deponent is a retained expert, it doesn't matter which side scheduled the deposition: the retaining party must pay the deposition expense. Id.; see alsoVicencio v. Lincoln-Way Builders, Inc., 204 Ill. 2d 295 (2003).
What about a cases in which a treating doctor is also going to render an opinion? According to Vicencio, the general rules applies: the party noticing the deposition must pay the fee. Id ("a nonparty treating physician, even though he or she may offer an opinion during testimony, is not an expert or opinion witness in the sense used here").
Vicencio also contains a discussion about what deposition expenses are taxable as costs.
In Illinois, depositions come in two varieties, discovery and evidence. The lawyer who sends the deposition notice makes the selection and states it on the notice.
What if the notice doesn't specifically state the type of deposition? When this happens, the deposition is a discovery deposition, as explained in Rule 202--
The notice, order, or stipulation to take a deposition shall specify whether the deposition is to be a discovery deposition or an evidence deposition. In the absence of specification a deposition is a discovery deposition only.
Rule 202.
In keeping with a theme from two posts ago, here's some more trial-practice goodness from Litigation magazine: "The Five People You Meet Preparing for Your Deposition," by Charles H. Samel (pdf).
The topic is preparing executives to testify. Though the author addresses the executives directly, the article is really for lawyers, which explains why it was published in Litigation. It's worthwhile reading for preparing all types of witness.
At Legal Underground, you'll find some deposition tips for new lawyers courtesy of the Unnamed Associate, a correspondent who writes guest posts there about once every two weeks.
Here's a sample: "[P]reparation is key--the key to feeling confident that you know what to expect, what you're looking for, or at least that you put some thought into the matter. Confidence goes a long way, so read the file, look at the records, look at the pleadings--remember what you're trying to prove or disprove."
There's much more in full post, titled "Things They Didn't Teach Me About Depositions in Law School."
As I mentioned in "Controlling Your Client in a Deposition," I'm not shy about speaking up when a client starts volunteering information during a deposition. "Just answer the question, then stop," I might say. A related problem is when your client gives testimony you know is wrong. I'm not speaking about an outright lie, which happily doesn't seem to happen very often, but an unintentional misstep that might seem like a outright lie if and when the mistake is discovered later.
Examples are getting a date wrong or forgetting to name a witness when asked who else was present at the scene of the accident. It comes up most commonly when a witness is asked what he reviewed to prepare for the deposition and he forgets to mention an important document I showed him.
Back when I was a new lawyer, it was not always clear what to do when the client goofed and I knew it. Now I just speak up: "I think you meant to say 1997, not 1995" or "Wasn't Alice Bertran also there?" or "I also showed you the marketing brochure."
Is this coaching? I don't think so. To correct an unintentional error is not impeding the truth but precisely the opposite. And for what it's worth, I've never had opposing counsel complain when I've used this technique.
In law school, my Contracts professor would turn red when we used too many pronouns in answering his questions about case facts. "They! Who's they? He? Who's he? Quit using pronouns!"
Though we all had a hard time reprogramming ourselves not to use pronouns, my Contracts professor was right: in some situations, pronouns get in the way of comprehension.
I was thinking about my contracts professor last week, when I heard lawyer after lawyer telling a judge during motion hearings that "they" did this and "he" did that until the judge threw up his hands.
"They! Who's they? He? Who's he? Be specific when you're telling me the facts."
Pronouns are even more insidious during depositions. It's almost impossible to use any single answer for impeachment if the question contains a pronoun:
Q. Were you present when he signed the contract?
A. Yes.
Q. Did you see him sign it?
A. Yes.
If you've to go back three pages to find out who "he" and "him" refers to, it makes the deposition transcript very unmanageable as an impeachment tool. While "you" clearly refers to the deponent, every other pronoun does nothing but muck up the works. That's why I try never to use pronouns when taking depositions. It feels completely unnatural at first, but it's possible to learn to do it, especially if you get into the habit of imagining your questions printed on paper as you're saying them to the witness.
A party's sworn interrogatory answers often predate the party's deposition by weeks or months, which is probably why some lawyers forget to review them with the witness as part of their standard deposition preparation.
Though surprising, it happens all the time, not only to overworked plaintiff lawyers but also to defense lawyers who forget that one of the defendant's employees had to verify the interrogatory answers.
It's a mistake that can lead to some terrible testimony, so be sure to add this reminder to your checklist: have the witness review his prior interrogatory answers before the deposition begins.
Are you heading to trial expecting to use deposition testimony from other cases? If so, are you sure the evidentiary issues will be resolved in your favor? What if the trial judge sustains an objection to your use of prior deposition testimony--testimony you were depending on to prove your case?
You can avoid this problem by working out a stipulation with your opposing counsel ahead of time. Here's a stipulation that's worked for me in a series of mass-tort cases:
The parties to this action, by and through their counsel, stipulate and agree that the prior deposition testimony of Defendants or their employees from any state court [particular type of mass tort] action may be used in the trial of this matter for any purpose, as long as such deposition testimony is otherwise admissible under the rules of evidence that would apply if the deponent were testifying live in Court.
Since I represented the plaintiff in the cases where I used this stipulation, I was the only party who wanted to use prior deposition testimony. Why did the defendant agree? The defendant got something too: the stipulation made some additional depositions of its employees unnecessary, since those employees had already testified on the same facts and issues.
Not long ago, I encountered a lawyer who sat next to the court reporter and whispered “objection, form” so quietly that I couldn’t hear.
Was this lawyer merely being polite, perhaps not wanting to be criticized for making form objections only for purposes of harassment? Or were his motives more sinister? Was he intentionally depriving me of the opportunity to rephrase my questions if I thought his objections were valid?
I decided the latter. I told the lawyer that if he was going to object, he was going to have to do it loudly enough for me to hear him. I then stated that his previous objections were invalid: not having heard them, I didn’t have a chance to decide if the objection was valid and rephrase the question.
Since the case settled, we never got a chance for the judge to rule on the objectionable objections. But I’d learned a lesson anyway: watch out for lawyers who whisper form objections, hoping that you don’t hear.
Related posts:
1. Ignore Your Opponent in a Deposition
2. Depositions: Don’t Ignore Form Objections
Most lawyers know to request a digital copy of deposition transcripts. It doesn't cost very much, and digital files can be manipulated much more easily than paper: searching is simple, and sections can be easily moved to trial notebooks or anywhere else by cutting-and-pasting.
If the digital copy resides on a floppy disk, however, you might have problems. Floppies are easily lost. The better alternative is to get the transcript via email. Most court reporters offer this service, which allows you to save the deposition on your hard drive as soon as you receive it. You'll also have a backup in your email.
While a floppy can be transferred too, it's something that often gets put off until it's too late.
It's what happens between the start and the finish of a deposition that really counts. Even so, since I've written about starting a deposition, it can't hurt to write about how to end one too.
If the deposition is being taken to preserve testimony for trial, then you should end the deposition like you end trial testimony: on a high note and with a flourish. This post, however, is designed mostly for those who are taking discovery depositions. The important thing to remember about a discovery deposition is that you shouldn't end it too quickly. Take a break to look over your notes. Have you covered everything you planned to cover? Have you followed up on any important answers?
Even veterans end their depositions by reviewing what has come before. Since it might be the only chance you have to question the witness before trial, don't allow yourself to feel rushed. Don't allow your opponent to rush you either. Remember that during depositions, opposing counsel should largely be ignored.
Procedurally, there is nothing magic that you need to do at the end of the deposition except to say, "I'm done for now." The other lawyers who are present then get to ask questions until everyone is finished; if another lawyer asks questions, you can follow up yourself.
At the very end of the deposition, the witness will have to be advised about the procedures for reading and signing the deposition or, in the alternative, "waiving signature." If the witness is represented, his own lawyer will advise about signature. If this task falls to you, say something like this--
The questions and answers today will be typed up by the court reporter into a deposition transcript. You have the right to read the deposition and review the answers. In the alternative, you can also rely on the accuracy of the court reporter to have taken down everything you said accurately, in which case you can waive the requirement of signature.
Whether you should insist in some cases that the witness read and sign is beyond the scope of this post, but an update might be coming soon, in which case I'll provide a link here.
There are certain questions you should consider asking in almost every discovery deposition. Add the following issues to your standard outline or use them to anticipate your opponent's questions when your are preparing witnesses to be deposed.
- The standard preliminary questions (see related post, "Preliminary Deposition Questions: What's Their Purpose?");
- How the witness prepared for the deposition;
- Statements by your client that the witness heard;
- The identity of other witnesses;
- Statements made by other witnesses;
- The witness's relationship to other witnesses in the case;
- Convictions;
- Conversations about the incident, lawsuit, or deposition;
- Admissions, i.e., testimony that will bolster your case.
Related posts: How to Start a Deposition; The "Deposition" Category (all deposition-related posts).
Experienced lawyers often claim they can "wing it" when it comes to depositions. They're undoubtedly right. And if they feel good about knowing that depositions don't give them butterflies anymore, it's hard to blame them for taking pride in their experience.
What are the dangers of winging it? Winging it is really nothing more than the ability to appear competent without having to prepare. While style without substance can get lots of lawyers through depositions, it doesn't add much to the case. Failing to properly prepare is not a good way to lay the foundation for trial or settlement.
Before winging your next deposition, here are some questions to ask yourself:
- What are the goals of the deposition? Are you merely gathering information or can you also get helpful admissions from the witness? How do you plan to achieve your goals?
- Do you plan to exhaust the witness's memory on certain issues? Which ones? Why those issues and not others? When you're finished, will the witness really be pinned down, or have you left some open doors for him to wiggle through later?
- Have you reviewed the pleadings? If not, why not? Have you looked at the discovery responses and documents? Which ones do you plan to use at the deposition, and why?
- Have you considered the way the witness might fit into your plan for trial? Have you even thought about trial? How will the witness support or detract from your legal claims or defenses?
- Have you thought about the reasons why you're asking the questions you plan to ask? Have you thought about the best way to ask those questions based on your anticipated strategies at trial?
- Have you thought about the ways you can use the deposition in motions before trial? Have you thought about the ways you'll use the deposition in other depositions? Have you thought about the ways you'll use the deposition at trial?
These questions apply no matter where you practice. In Illinois, however, where discovery depositions are limited to three hours, thorough preparation is all the more important.
One of the problems with assigning the task of abstracting a deposition to a lawyer or paralegal who is not familiar with the case is that you'll often end up with a page-by-page recounting of the deposition testimony that, though shortened somewhat, still contains way too much information in a way that remains hard to skim. It's one of the reasons why, when time permits, I'd rather abstract depositions myself.
However, I don't arrange the abstracts page-by-page. Instead, I do it by topic or issue. For example, in a recent overtime case seeking overtime for a class of insurance adjusters, my deposition abstracts were organized by issue, with headings such as job duties of insurance adjusters, use of discretion and independent judgment, company structure, numerosity, common questions of fact and law, and so on. I then copy-and-pasted the witness's most important deposition testimony to the issue outline with a page citation.
When the same case issues are used for abstracting every deposition in a case, it makes finding pertinent information a breeze. And if you use software like CaseMap, it's possible to view deposition summaries both page-by-page or by issue, changing between the views with a click of the mouse.
A corporate-designee notice under the procedures of Fed. R. Civ. P. 30(b)(6) or a state-court equivalent requires your opponent, if a corporation, to produce someone with knowledge to testify about whatever topics you list in your notice. It's a powerful discovery tool that I use in almost every case. For example, in "Discovery: Cut Out the Middleman," I wrote about the use of corporate-designee depositions as a substitute for interrogatories. And in "Discovery Concerning the Parameters of Electronic Information," I wrote about using the corporate-designee procedure as a part of electronic discovery.
In this post, I'll include a sample corporate-designee notice from one of my old cases. It can't be used verbatim, of course, but it illustrates the sort of information that can be discovered by using such a notice. It's based on Illinois Rule 206(a)(1), which states--
(1) Representative Deponent. A party may in the notice and in a subpoena, if required, name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons to testify on its behalf, and may set forth, for each person designated, the matters on which that person will testify. The subpoena shall advise a nonparty organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization.
Continue reading "More on Corporate-Representative Depositions, Plus a Sample Notice" »
It's sounds crazy, but each year, scores of new lawyers experience unnecessary angst when they sit down with their detailed outlines for their first depositions and realize they've forgotten exactly how to get started.
It's something that's just not covered in the standard textbooks on depositions. Weblogs, however, are another matter. So let's back up a bit and take it from the beginning, step by step:
- After picking a date for the deposition, hopefully with input from the other side, it will be formalized with a deposition notice.
- Since it's your deposition, you will be responsible for making sure there's a court reporter present. Most secretaries will keep you from forgetting to get a court reporter, which is a good thing--it's quite embarrassing when it happens. Some lawyers even carbon copy the court reporting service on the notice itself, which is a useful tip to remember.
- On the day of the deposition, arrive early and stake out your ground. The court reporter will sit at the head of the table, just like your father used to do at dinner. You'll sit to his right or left--it's your choice. The witness will sit directly across from you.
- If the court reporter is there already and you are waiting for the witness or the other lawyer, you can have the court reporter pre-mark your deposition exhibits.
- Once everyone is assembled, it's your chance to shine. Begin the deposition with two simple phrases: "Is everyone ready?" followed by, to the court reporter, "Go ahead and swear the witness."
At this point, the court reporter will administer an oath to the deponent. After that, you can dig into your outline with the standard opening question, "Please state your name for the record," or, if you want to sound like an old pro, "Tell us your name, please."
If this is all too much to remember, it will put your mind at ease to know that even if you forget how to start a deposition, the court reporter won't. He'll see you piddling around with your papers and will ask, "Should I swear the witness?"
It's a long way of saying that you never really needed these instructions in the first place. So relax and take a deep breath: you'll do just fine.
Related Post at the Legal Underground: "The Horror of My First Deposition."
From Medical Economics magazine: "Malpractice: How to Survive a Deposition," by Berkely Rice--
The deposition is a standard part of the "discovery" process that enables both attorneys to quiz their opponent's clients and witnesses. While depositions may seem less threatening than a trial, doctors who aren't prepared tend to let down their guard and reveal incriminating details that provide ammunition for the other side.
I first saw this article linked on Overlawyered, where it was used to demonstrate "how little the [deposition] process has to do with truth-seeking," a proposition I can't agree with. Even so, the article is well-written, and has a number of uses, for example:
- To prepare a doctor in a malpractice case for his deposition testimony;
- To prepare to depose a doctor in a malpractice case; or,
- To prepare any professional for a deposition.
Admittedly, the article is a little over-the-top in implying that the "sneaky" questioning techniques that are profiled apply only to plaintiffs' lawyers; they apply equally to defense lawyers. If you can get past the rhetoric, however, the article has still another use. In preparing to take depositions, both plaintiffs' lawyers and defense lawyers are well-advised to consider the deposition process from the witness's point of view: how the witness has been told to prepare, what the witness is expecting of you, the ways the witness might be hoping to avoid giving direct answers to your questions, and so on. Articles like this one can provide an opportunity to answer these questions as you prepare for a deposition, which will make you more effective.
The more deposition experience you have, the less likely you'll want to script out deposition questions ahead of time. After all, you need to be able to listen to the witness and respond with a new question based on his answer--and you don't know the answer until you ask the question.
For this reason, deposition outlines are often just a list of topics and sub-topics you want to cover with the withess. As you're getting to this point, however, there is nothing wrong with scripting out some of the questions you'll be asking. A principle benefit of this approach is that it will help you to better visualize the deposition process before it happens. Just remember to be flexible enough to set your scripted questions aside at the real deposition when the witness wants to take you off on a tangent that needs to be explored.
For lawyers learning how to take depositions, there's no better way to jumpstart the process than by reading old deposition transcripts. If you take this approach yourself, pay particular attention to depositions taken by the lawyers you are working for. Their own deposition styles will likely be used as models for what they'd like to see in you, meaning those styles would be good ones for you to imitate.
Have copies made of the old transcripts you're studying. Pay attention to how the lawyer taking a deposition introduces and uses exhibits, how he responds to objections by the other side, and how he follows-up on the fly to the answers the witness gives, rather than just reading questions from an outline.
Here are some corporate-representative deposition resources that I unearthed while searching for something else.
- Emphasize "Defense" When Preparing Company Witnesses, by David W. Olson. Olson notes, "defense counsel is sometimes confronted with the task of preparing a loquacious company witness who believes that he or she has been called upon to 'win the case' for the company." What should you do?
Enjoy!
When you're taking a deposition, don't ignore your opponent's objections to the form of your question. If you're planning to use the transcript at trial or for other purposes, you might lose the right if your opponent's objection is sustained.
Once you hear "objection, form," you'll often know right away what was wrong with the question. Often, it was just too wordy, making it vague. Simplifying the question will usually take care of the form problem and is good practice anyway. Withdraw the question and ask a better one. You don't need to feel like this is an admission of defeat: it's not.
What about those bothersome opponents who interject form objections just to be bothersome? If you don't know what's wrong with the form of your question, ask your opponent to tell you. You're entitled to an opportunity to fix your question. If it turns out that your opponent can't explain, it means he was just trying to harass you. Keep asking for the reason for the form objection, and chances are he'll stop.
When you were preparing your client for his deposition, you probably told him not to volunteer anything that the opposing lawyer didn't ask about. Asking questions yourself would violate your own instructions to your client not to volunteer. This is one of the reasons why you rarely see lawyers asking their own clients questions at a deposition.
There are exceptions, of course. If your client's testimony on a key point was inaccurate, you can attempt to repair the damage with your own questions. If your client's testimony in a key area was damaging and needs to be explained, asking questions can allow your client an opportunity to give his explanation. Keep in mind, however, that if you ask questions for either of these reasons, it will send a signal to the opposing lawyer that you didn't prepare your client well enough and think you've been hurt by his testimony. Don' take this step without thinking about it first, especially since your questions probably won't repair the damage.
Another common reason to question your own client is because you need to elicit facts that will be used to defend an upcoming motion. Since testimony at a deposition will carry greater weight than an affidavit when attached to a legal memorandum--psychologically, if not as a matter of legal rule--it often makes sense to establish the facts at your client's deposition. In sexual harassment cases, for example, it is common for the plaintiff's lawyer to ask questions that will be used to help defend a motion for summary judgment.
How should you handle a witness who won't give you a direct answer to a question? There are various solutions to this problem, including the following:
- If you foresee problems in advance of the deposition, notice up a video deposition; if the presence of the camera doesn't cure the witness of his impudence, you might at least be able to play clips of his impudence for the jury;
- Even without the video camera, you can tell the witness about your plans to show portions of the deposition transcript to the jury;
- You can tell the witness that unless he answers your questions, you will have to keep the deposition going for hours longer than is necessary;
- If the witness is represented by a lawyer, you can have the witness's lawyer intercede to get the witness back on the right track;
- You can stop the deposition and seek court intervention.
A very experienced lawyer I know has another suggestion. Sometimes, he says, you'll come across a witness who is very skillful in giving the appearance of cooperating in the process while not really cooperating at all; confronted with a witness like this, you should consider giving up and getting the evidence another way. In many cases, this will be the cheapest and most effective solution to the problem of the recalcitrant witness, and doesn't mean that the witness has "beaten" you.
You'll find out how to do it in this book: Preparing Witnesses, A Practical Guide for Lawyers and Their Clients, by Daniel I. Small.
Al Nye reviews the book here.
As the comments to this post show, the most common answer seems to be pen and paper, rather than some more newfangled device such as a laptop or a tablet PC.
Although Press Millen is quick to remind readers that "litigation is not a game," he's written an entertaining article, "Poker's Lessons for Litigation," which originally appeared in the North Carolina Lawyers Weekly. The fifth lesson, "watch for the tell," contains this advice for deposition-takers:
Testimony, whether in court or in a deposition, can be a virtual laboratory of tells. By carefully listening to and watching a deponent, we can often tell when a witness is holding something back. By continuing to pick at the witness with further questions, I have often arrived at the point where the witness was finally forced to give me the complete story.
The trick, I might add, is knowing when the witness is holding something back. Two dead giveaways: when the witness either evades the question or seems to have a memory lapse about an important matter when other matters within the same timeframe are easily recalled.
Note: Thanks to my law firm's winter-break research assistant, law student Aaron Call, who found this article as well as some others I'll post about in the weeks ahead.
A webpage put together by Video Resources has tips for location, lighting, audio, and seating at your next video deposition. In most cases, you'll probably hire someone to take care of these details for you. But will your technician mention the following tip?--
If you are planning to use the video in a courtroom, let the video company know in advance of the taping. The court reporter and the videographer can synchronize their time/date stamps, which will save a lot of extra work and expense later on, when it's time to prepare the courtroom video from the transcripts.
By the way, this seems to be just the second post in a year about video depositions. Here's my previous effort: "Controlling Abusive Counsel with Video Depositions."
This one's from the plaintiff's point of view: "Preparing for the defense medical expert's deposition," by Betsey Herd and Janabeth Evans Taylor. Originally published in Trial magazine, the article's focus is medical malpractice actions, but it will give you some good ideas for researching the opposing expert in any type of case.
The question posed in the headline is merely rhetorical: of course outlines aren't uncool. In fact, conducting a deposition without an outline would be a lot like jumping out of an airplane without a parachute.
A related question is how much detail your outline should include. If you're new to the deposition process, your outline should include lots of detail, as this humble post by The Uncivil Litigator makes clear. It means your outline should include not only issues and topics, but many actual questions. Just remember never to become wedded to an outline: to follow up properly on the witness's answers, you have to look away from your outline and listen.
As you become more comfortable with the deposition process, your outline might include only a checklist of issues you want to cover, one that you've prepared ahead of time after carefully thinking about the goals of the deposition in the context of the particular case. But to walk into a deposition without at least this level of preparation? Do it only if you want to risk showing up on the first day of trial and going splat.
When a witness answers "I don't know" in a deposition, it's not necessarily your cue to move on to another topic. Say that you've just asked Mr. Jones what happened in a meeting on October 5. Mr. Jones responds that he doesn't know. If you already have a version of the October 5 meeting you want to present through other witnesses, you might be happy that Mr. Jones's claimed lack of knowledge will prevent him from giving a different account.
Or will it? At trial, Mr. Jones might remember October 5 and dodge your attempt at impeachment by saying that following the deposition, he refreshed his recollection by talking to others who were there or by reviewing documents.
It's one reason why you can't always stop at the "I don't know." Ask the witness whether he knew once and now can't remember, or whether he was never in a position to know. Follow up accordingly. If he was never in a position to know, pin him down as to why, which will probably eliminate him as a witness concerning the events of October 5. If he was once in a position to know, ask what he could do to refresh his recollection of events, then consider doing those things yourself--for example, by showing him documents or telling him what others have said.
Once again, an Illinois appellate court has ruled that there is nothing magic about the phrase "based upon a reasonable degree of medical certainty," which lawyers often use to preface their questions to experts about their opinions. In Hahn v. Union Pacific, No. 5-03-0466 (5th Dist. 2004), the court stated as follows--
There is no magic to the phrase itself. The phrase provides legal perspective to medical testimony and signals to the jury that a medical opinion is not based on mere guess or speculation. It is of no consequence that a medical expert witness fails to use this phrase if the expert's testimony reveals that his opinions are based upon specialized knowledge and experience and recognized medical thought.
Id. (citations omitted). This comment was made in the context of a decision reversing the trial court's grant of summary judgment for the defendant in an FELA case. The case also contains an analysis of the "might or could" standard for proving causation.
It's been my experience that depositions often go on much longer than is really necessary. Since I've contributed to the problem as much as any other lawyer of my acquaintance, I thought I'd do penance by coming up with some suggestions for keeping depositions short.
- Don't cover the same ground twice. It seems to happen fairly often that towards the end of a deposition, the questioner returns to topics that have already been adequately covered. You can make sure this doesn't happen to you by following an outline that has some logical method of organization, even if it's known only to you.
- If you don't know why you're asking a question, why bother? Keeping depositions as short as possible requires some preparation and planning. Before you begin, be sure to understand what you hope to accomplish during the deposition, how the deposition fits into the overall discovery plan, and how the deposition will be used at trial.
- If the witness is rambling, assert control. Of course, there can be good reasons for allowing a witness to ramble. For example, it might mean the witness is volunteering information that is useful to you. At other times, however, the witness might just be a nervous talker or a selfish time-waster. In this case, feel free to politely interrupt to tell the witness he has gotten off track. Then start over by asking the question again.
- Omit the throat-clearing questions and get to the point. Often, lawyers circle around and around for hours before they finally get to the key questions for which they noticed up the deposition in the first place. If this describes you, refer back to Rule #2: Why are you asking all those throat-clearing questions? Sometimes it helps to engage in the fun practice of beginning a deposition smack in the middle with the most difficult questions first. This strategy is guaranteed to catch both the opposing lawyer and the witness off guard, and in certain situations, it can be very effective.
- Do you really need the deposition at all? Here's another great way of keeping depositions short: cancel them if they're not really necessary.
- Know when to violate these rules. There are situations calling for very lengthy depositions, and if that's the situation you're in, so be it. But for the great majority of depositions, the three-hour rule in Illinois requires you to know how to keep depositions short. If you think you're pretty good at it already, ask yourself how you'd conduct the deposition differently if you were given only two hours. It can be a very useful exercise, and it might help to get you home by dinnertime.
Law professors with past experience as practicing lawyers (which would include most of them, I guess) might know quite a bit about depositions, as is demonstrated by an easy-to-read 9-page guide by Professor Tanford of the Indiana School Law. It's simply titled "Depositions" and tells you what you'll need to know to take a deposition, as well as to defend one. It even includes a list of typical objections.
Though it's based on Indiana law, the tips provided by Professor Tanford are applicable just about anywhere.
Illinois Supreme Court Rule 206(h) allows for telephone depositions by agreement or upon order of the court. The various rules for telephone depositions listed in Rule 206(h) can be amended or waived pursuant to Rule 201(i). Generally, the exhibits that any party plans to use should be exchanged in advance of the deposition, and the court reporter should set up at the witness's location.
So here's the tip: Telephone depositions make sense from time to time, but in most cases, you won't want to be the lawyer on the telephone. If your opponent wants to attend a deposition by telephone, by all means allow him to do so. Meanwhile, you should appear in person. You'll have an obvious advantage over the other lawyer, who won't be able to exchange pleasantries with the witness in person and who will be fumbling with the exhibits when the deposition starts.
As a lawyer who's been in both situations, take it from me--it's better to be the lawyer who's present at the deposition in person, rather than the one who appears by telephone.
There are many reasons to consider video depositions. If the witness won't be present at trial, for example, the jury will appreciate being able to watch the deposition on a TV monitor, as opposed to having it read to them by lawyers. Even when you know the witness will be present, a videotaped deposition can be more impressive as a vehicle for impeachment than the alternative. Some judges will even allow portions of videotaped depositions to be played during opening and closing.
Here's another reason to consider videotape: it will have the effect of making your opponent strangely silent, even if he's apt to be irrational and abusive when the camera's not there. He'll still make objections when appropriate, but they're likely to be made in a much more even tone of voice, without all the histrionics. Think about it next time you're matched up against one of your city's savage beasts.
It's been said that informal discovery has become a dying art. If it's true, it means that many witnesses are being deposed who probably don't need to be. Ask these questions before filing a deposition notice:
- Is the witness friendly to your side? If so, and if the witness is available for trial, there's often no reason to give the other side a preview of the testimony. Find out what you need to know through informal means of discovery--a phone call or a meeting at Steak 'n' Shake.
- Even if the witness is not a "friend," have you tried informal discovery anyway? If there aren't any ethical barriers to talking to the witness directly, try to arrange a meeting. If you're worried that the witness might change his story and needs to be pinned down, think first about witness statements rather than depositions.
- Is the deposition worth the expense? One of the advantages of informal discovery is that it saves money. Of course, it may also mean that you're faced at trial with cross-examining a witness you've never deposed. But if the criminal lawyers can learn to do it--not to mention the "old-timers"--so can you.
- Do you really want to preserve the testimony in a deposition? As James W. Jeans points out in his book Trial Advocacy, "[T]he information you receive might hurt more than it helps. Furthermore it is preserved, to be available at trial even if the witness dies, is transferred to Perth, Australia, committed to an institution or otherwise 'unavailable.' And, one more demerit, you might legitimate evidence that would not have been received at trial. Deposition taking will waive certain witness incapacities and certain lines of inquiry will waive privileged testimony."
These are all good reasons to think twice before filing a deposition notice.
You're trying your best to defend a deposition, but you were up late, you're tired, the room's hot, and the guy who's asking the questions is the most boring lawyer who ever lived. What happens? For a humorous take on defending depositions, read the post "And I Shall Call Her Roxanne" by the pseudonymously-named author Rufus T. Firefly of the weblog Running With Lawyers.
The National Institute for Trial Advocacy (NITA) offers a sample chapter from one of its books about depositions: "Preparing to Take the Deposition" (pdf). The chapter contains a lot of useful advice, subdivided into these topics:
- Your Frame of Mind
- Creating the Deposition Outline
- Research the Law
- Identify All Available Facts
- Construct Your Theory of the Case
- Identifying the Opponent's Factual and Legal Theories
- Generating Questions
- Organizing the Deposition Outline
- Using the Outline at the Deposition
- A Final Word About Preparation
I'm not sure when I first heard the term "impeachment nugget," but it changed the way I think about depositions.
An impeachment nugget is a question and answer in a deposition about a single fact, which can be easily used at trial to impeach a witness who tries to change his story. A very simple example:
Q. The light was green, correct?
A. Yes
If you think in terms of impeachment nuggets as you're taking a deposition, it will help you maintain a clean transcript whenever you're doing the important work of pinning the witness down about key facts. You'll remember, for example, to confine your question to a single, simple fact. You'll also remember to keep repeating the question until the witness gives you a straight answer without extraneous information.
In the example above, if the witness answered, "Yes, and I thought it was about to turn yellow," it would be appropriate to say, "I'm going to ask again. The light was green, correct?" When the witness responds "yes," then stops, you have an impeachment nugget for trial.
Every so often, I make a personal admission on this weblog, most of which make me look inordinately geeky. Here's another: for years, I kept a detailed log recounting the highs and lows of each deposition I conducted. Mostly, it was a catalogue of my mistakes.
The time to do it was just after a deposition had ended. As I tend to be a perfectionist, I wouldn't hold back in recounting my errors. Did a witness get the best of me? I'd note that fact, adding instructions to myself for maintaining control the next time I came face-to-face with a strong-willed deponent. Did a witness I was defending make an unnecessary admission that could have been avoided by preparing him differently? It was duly noted in my notebook. In defending a deposition, did I fail to make a needed objection? I made sure to record that fact, as well as any other mistake that came to mind.
You get the idea. Every so often, I'd review my catalogue of little deposition sins, resolving not to make the same mistake twice. I'm still far from perfect, which might be attributable to another failing of mine: I lost my notebook and never started another.
But now I have this weblog, the better to share my mistakes with the entire world. Is that yet another mistake? Time will tell . . .
Deposition testimony often comes into evidence at trial. If the deposition was videotaped, the deposition can be played for the jury on a monitor. Otherwise, the deposition must be read to the jury, line by line.
How to do it? I've seen lawyers stand in front of the jury and read the entire deposition themselves, saying "question" and "answer" as they drone through the transcript. It's no way to grab the jury's attention. Another method is to have someone else--another lawyer, a paralegal, etc.--sit in the witness box and play the part of the witness, transcript in hand. The lawyer reads the question; the "witness" reads the answers.
In today's National Law Journal, there's an article titled "Lights, Camera and . . . Time to Testify," by Leonard Post. It's a discussion of a third method for dealing with deposition testimony at trial--namely, hiring an actor to play the part of the witness. According to the article:
Continue reading "Who Should Read Depositions at Trial?" »
At his weblog the [non]billable hour, Matt Homann is presenting five answers to this question: "If you had the power to change five things about the practice of law, what would you change?" He graciously asked me to comment, along with Carolyn Elefant, Scheherazade Fowler, Denise Howell, and Ernest Svenson.
My ideas can be found here; they all deal with making depositions more civil. Be sure to visit Matt's weblog today for some other very interesting posts.
Most lawyers begin depositions with a series of preliminary questions that vary from lawyer to lawyer, but which generally go something like this:
--Have you ever had your deposition taken before?
--You understand you are under oath?
--And that means sworn to tell the truth?
--And even though we are in an informal setting here in this office, your answers have the same force and effect as if we were in a courtroom with a judge and a jury?
--Are you prepared to answer my questions today?
--There's nothing that will prevent you from giving me your full attention?
--You aren't taking any medications that will prevent you from giving me full, complete, and truthful answers to my questions?
--If you don't understand one of my questions, will you let me know?
--If you need to take a break at any time, tell me, and we'll take a break. Is that okay?
Questions such as these put the deponent at ease right from the start. But more importantly, they'll help you at an evidence deposition or at trial if you need to impeach the witness later with his prior testimony.
Continue reading "Those Preliminary Deposition Questions: What's Their Purpose?" »
Do you want to know how that expert you are about to face might have prepared for your killer cross-examination? Take a look at "Advice for Experts Facing Cross-Examination," by Steve Babitsky and James Mangraviti, Jr. Here's a sample:
You are well advised to avoid, where possible, absolute words such as "always" and "never." Absolute words are frequently an invitation to, and fertile grounds for, cross-examination by counsel. Counsel will attempt to damage your credibility by first getting you to make an absolute statement. She will then use counterexamples in an effort to show the falsity of your statement.
"A Few Common Cross-Examination Questions," by Arthur C. Croft, is written by a chiropractor for an audience of other chiropractors. Its theme: Don't let the lawyer trip you up. The article might have value for both plaintiffs' lawyers and defense lawyers.
Here's a recent law review article about defending depositions: "Playing by the Rules: Strategies for Defending Depositions," by Sandra F. Gavin, The Law Review of Michigan State University Detroit College of Law (1999) (.pdf version).
The article contains a survey of deposition rules in various jurisdictions and a helpful section titled "Objections, Instructions and Seeking Court Intervention."
A common technique your opponent may use in a deposition, particularly if he is older or more experienced than you, is to rattle your concentration with obnoxious behavior such as improper objections, loud sighs, rattling of a newspaper, etc. I have found that an equally effective defense to this technique is to completely ignore the obnoxious behavior. Focus on the deponent and your game plan and refuse the opposing lawyer's invitation to be drawn into an argument. In fact, you should simply pretend he's not there, unless he makes an objection to one of your questions that is worthy of your consideration.
The obnoxious behavior I've described may pose ethical issues to be considered on another day. In the meantime, however, consider this hypothetical, based on a true story: You are defending a deposition that is being conducted by someone more experienced than you who has not learned the importance of ignoring the other side. Even though you are less experienced, you are well aware of your opponent's weakness. You also know that if you object in just the right tone of voice, and do it just a couple of times, he will explode with anger, making it difficult for him to stay on track for the rest of the deposition.
If you can make the other lawyer angry, you will thwart his deposition goals. Would it be ethically proper to adopt the magical anger-inducing tone of voice in making proper objections?
Leading questions should be easy. But have you made the following common error, requiring that you turn one question into two?
Q. It was 2:10 p.m., is that not correct?
A. Yes
Q. That was a true statement?
A. Yes.
It's that pesky negative that causes the problem. A better approach would be:
Q. It was 2:10 p.m., correct? --or,
Q. It was 2:10 p.m.?
The last example is often the best alternative. It's simple, direct, and unambiguous.
No doubt, you gave your client strict instructions during your deposition preparations: Answer only the question that's asked; don't volunteer information; after you've answered the question, stop; if no one is talking, keep your mouth shut, etc.
So what do you do if your client, despite your preparations, turns out to be a non-stop talker? Repeat after me: You're a lawyer, not a potted plant. Speak up. Sure, it's the other guy's deposition, but if your client isn't following your directions, it's time for some reminders, such as:
Continue reading "Controlling Your Client During Deposition" »
Just before a deposition the other week, my client told me he feared that the other side would bring an outsider, tangentially connected with the opposing party, to the deposition as an observer. According to my client, I couldn’t allow this. If I did, the deposition “could turn into a brawl.”
Well, the customer is always right. Although this sort of thing comes up in my practice from time to time, I had never gotten to the point of finding out whether the rules would allow me to exclude a non-party observer from a deposition. This time I looked it up, but found nothing. My plan was to ask the other lawyer to keep the observer away. If he didn’t agree, I’d postpone the deposition so that I could file a motion for a protective order. (Brawls being a bad thing at depositions, in my opinion.)
Continue reading "Can You Exclude Non-Party Observers from Depositions?" »
In my last post, I explained why I believe plaintiffs' lawyers should always meet with a treating physician privately before a deposition begins. I said it surprises me when lawyers don't take advantage of this opportunity. Just as surprising is the fact that some defense lawyers don't ask about the meeting during the deposition.
It's true most doctors don't go out of their way to help you when you pry into the details of their conversations with the plaintiff's lawyer. But you should be able to elicit a list of topics the two talked about, which will give you some insight into the issues the plaintiff's lawyer thinks are most important--or about which he thinks he is most vulnerable.
Continue reading "Defense Lawyers: Ask About the Doctor's Meeting" »
For the plaintiff's lawyer, a lot of the work required for the deposition of a treating physician takes place just before the deposition begins. I'm always surprised by lawyers who do not take advantage of the opportunity to meet with the doctor before the deposition. Even before routine depositions, you should call ahead and say you'll need ten minutes with the doctor. Then prove to him what a nice guy (or gal) you are. If the other side noticed the deposition, tell him the deposition was the other side's idea. Make sure he knows how to get paid for his time. Tell him you hope the deposition won't take very long, but you can't control what the other side will do.
Continue reading "Plaintiffs' Lawyers: Meet With The Doctor" »
"LexisNexis for Associates" offers this free article: "An Associate's Guide to Deposition Preparation: The Ten Essential Steps," by David V. Dilenschneider. Among the steps:
--Research the Applicable Law;
--Become an Expert to Depose an Expert;
--Understand Opposing Counsel;
--Prepare an Outline.
I discovered a good post about depositions by Ernie the Attorney, which contains a link to Ernie's "Deposition Tips for New Lawyers." Ernie's deposition tips cover these areas: basics; preparing to take a deposition; getting the deposition started; on the record/off the record; common problems; and defending depositions. If you need the basics, read it.
Another blawg author to write recently about depositions is TPB at unbillable hours, who noted in this post:
I have changed how I ask questions at depositions based on how I want my questions to read on the printed page. My ideal circumstance is to ask a question and receive an answer that is a logical, complete quotation without ever needing the context of the rest of the deposition.
My view on deposition language is very similar. If you have a visual imagination, you should try to picture as you are speaking what the printed words will look like on the page. This will keep you from adding unnecessary words, which will clutter the deposition and make it useless for impeachment. And in keeping with TPB's suggestion, don't use prepositions like "he" or "she" or "they"--say the name. When you get to the point where you are pinning the witness down for an "impeachment nugget," the question should contain as much information as possible, without being unwieldy. (Practice enough, and it's easier than it sounds).
Here is a primer on deposition objections, proper and improper: "Civility in Depositions -- Hardball Strikes Out," by Lewis F. Collins, Jr.
According to the author, the article "was originally published as 'Civility In Depositions - Hard Ball Strikes Out,' as part of the Course Book for the Federation of Insurance and Corporate Counsel's Mid-Winter Meeting in Naples, Florida, March 1995. It also appeared in the August 1998 DRI Lawyers Professionalism & Ethics Newsletter and was published as 'How to Deal With Improper Objections and Tactics During Depositions' in the Federal Discovery News, LRP Publications, June 1995."
Though the focus is on the federal rules, the author's commentary about civility in depositions is important for all practitioners.
